Thursday, May 29, 2008

Patients Catching Fire During Surgery...And Getting Tossed Out Of Court

This true story proves how difficult it has become to pursue legitimate Ohio medical malpractice cases because of recent law changes that favor doctors and hospitals over injured patients. Recently, a patient in Southwest Ohio underwent a medical procedure in a local hospital where electrodes were placed on her scalp. Apparently, an electrode "arced," causing a spark, which combined with oxygen from a nearby oxygen mask. The result? Disaster. Flames shot to the ceiling, and this poor patient literally caught fire, sustaining second and third degree burns to her head and face.

Sounds like a legitmate case, right? It's probably a safe assumption that people are not supposed to catch fire during routine medical care, and when something like this happens, there was probably some human error involved. The patient filed a lawsuit for her bills and injuries, and as required by law, a qualified expert reviewed the case, and testified at a deposition (a procedure where a witness is questioned under oath by an attorney in the presence of a court reporter)that the doctor's failure to properly prep the patient most likely led to the arc, the spark, and the fire.

The trial court judge...... threw the case out of court on technical legal grounds. Apparently, the judge reasoned that since the expert listed other possibilities for the fire (such as a defective electrode), the expert's testimony was "speculative," and therefore dismissed the case. So the patient appealed the dismissal to a Court of Appeals.

The Court Of Appeals reversed the dismissal, and re-instated the lawsuit. In an impressive opinion, Judge Painter hit the bull's-eye with his opening sentence: "Medical treatment should not involve setting a patient's head on fire."

So what's the point here? Here's a woman who actually caught fire during a routine medical procedure, filed suit, secured a qualified expert as required by law, spent months litigating the case.....and the case still got thrown out of court!!!! Thankfully it was revived, but nobody who hears the facts of this case would think it's frivolous or not legitimate. Yet, the rules for expert testimony handed down by courts recently have become so hypertechnical that some courts seem to require perfection before the case can proceed. Now, compare this legitimate case to the PERCEPTION of our legal system regarding malpractice cases: "too many junk or frivolous lawsuits causing our health care costs to go up, doctors practicing defensive medicine because of fear of lawsuits," etc, etc.

I'd say that a patient catching fire is the flipside of the frivolous lawsuit coin. Now, after almost 2 years in the legal system, this patient gets to go back to square one with her lawsuit. Hopefully, she'll receive some justice, and the doctor or hospital can work on preventing this from ever happening again.

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Wednesday, May 21, 2008

Ohio School Immunity......And How Your Children Are Not Protected

Ohio schools are 100% immune from any liability if any school employee or volunteer molests your child at school, on the bus, a field trip, or anywhere on a school function. Don't believe it? Read on.

We recently argued a case in the Ohio Supreme Court on behalf of two children who were harmed by a volunteer elementary school chess coach. Unfortunately, the Ohio Legislature has given legal immunity (meaning no liability) to schools for nearly every negligent act, even when schools drop the ball and negligently fail to perform background checks on personnel and volunteers who are given custody and control of schoolchildren. The volunteer chess coach in our case was a previously convicted child molester. The school did NO background check, criminal or otherwise. Believe it or not, the case was thrown out of the court because the molestations did not occur on school property, and therefore "legal immunity" applied.

We appealed to the Ohio Supreme Court, and they agreed to hear the case. Our main argument was that it is ABSURD to interpret the law to require that the molestations occur on school property to remove the immunity when the school district took no measures to weed out a previously convicted child molester, and essentially allowed him to infiltrate an elementary school. We argued the case on April 23, 2008. You can watch the oral argument by clicking here. Below is the text of the newspaper article regarding the case........and after you read it I'll explain what happened......

Ohio Supreme Court Hears Massillon Arguments Is district liable for abuse on chess-club trip? Thursday, April 24, 2008 BY Paul E. Kostyu COLUMBUS

The chief justice of the Ohio Supreme Court wondered if a Massillon case the court heard Wednesday wasn't better left to the Legislature. Justice Thomas J. Moyer interrupted Canton attorney Brian R. Wilson as he was arguing that the Massillon Board of Education should be held liable for the actions of a volunteer who oversaw a student chess club. "It seems this is a policy argument," Moyer said. "Maybe it cries out for a change in the law." At issue is Ohio's sovereign immunity law, which says a school district is not liable for injuries to students caused by the actions of a volunteer when an after-school activity occurs outside school property.

John Smith, an unpaid volunteer, ran a chess club for students at Franklin Elementary School for several years. During a spring break trip, Smith and a school guidance counselor took several students to an out-of-state tournament. Smith sexually assaulted two of the students, ages 9 and 10. After the assaults, officials discovered Smith had a prior felony conviction for sexually molesting young children. Wilson represents the children's parents as they sued the district alleging negligence for failure to investigate Smith's background and lack of supervision at his twice-weekly club meetings. A Stark County trial court ruled the district couldn't be sued. The 5th District Court of Appeals upheld that decision, sending the families' appeal to Ohio's top court.

"This is a shining example that no law is settled until it's settled right," Wilson told the court. "If the trial and appellate courts are upheld, school districts get blanket, 100 percent immunity when school personnel harm children as long as they are off school property. It's immunity by location." Wilson said a strict interpretation of the law about location would "create an absurd result." Nicole M. Donovsky, a Columbus attorney representing the Massillon district, said the issue centers on whether the injuries to the students occurred on school grounds, and it was clear that they did not. She also said the trip to the chess tournament was not sponsored by the school and did not involve school vehicles. And the law does not require school districts to obtain background checks of volunteers. "The language (of the law) is unambiguous," she said. "It has a plain and ordinary meaning."

In an exchange with Justice Paul E. Pfeifer about possible scenarios, Donovsky said location and how it is used becomes important. The law clearly applies to activity on school property, but she said the court has to look at the government function for off-sight activities. She said because the school did not sponsor the trip, it was not a government function. She said the Legislature has the "capability of limiting the reach of a public school district's liability." A decision by the court is expected within several months. (End of article)

******************* Now, the rest of the story...........On May 16, 2008, The Supreme Court dismissed the case without explanation. Case over-- with the stroke of a pen. By dismissing the case, they simply avoided deciding the issue--which means the school district was entitled to blanket immunity. So, the upshot is that the school district and its insurance company won, and these children lost. As if that's bad enough, here's the real kicker: as it stands right now, under CURRENT Ohio law, a school district has ABSOLUTELY NO LIABILITY OR LEGAL ACCOUNTABILITY if a student is molested by a teacher, aide, cook, janitor, volunteer, or anybody else, even if the child is molested on school property,off the property, on a bus, or a field trip, for example. It gets worse: even if the school district fails to do a mandatory criminal background check on the offender, or even if it knows in fact that the employee is a pedophile and does nothing about it, or ignores or fails to investigate legitimate complaints, there is NO LIABILITY. Shocking? You bet.

How did this happen? In 2003, the insurance companies and school boards asked the Ohio Legislature for immunity from molestations in response to a 2002 Ohio Supreme Court decision known as Hubbard v. City of Canton. In that case, the Court ruled that the Canton City Schools could be sued for negligently retaining a teacher who molested two middle school students. Not pleased with this ruling, the Ohio School Boards Association, and the insurance industry, asked the Legislature to change the law and limit the schools' liability to "physical defects" on the premises (like a falling ceiling, for example). The Legislature agreed, and by changing the law to limit the schools' liability to "physical defects," it eliminated schools' liability for negligently hiring or not properly investigating school personnel who eventually harm schoolchildren. The conclusion? The insurance industry is a more powerful and persuasive lobby in Columbus than the idea of making schools accountable for failing to protect schoolchildren from sexual predators.

If this disturbs you, there's something you can do. Share this blog or what you've learned with as many people as you can, and then call or write me. I will let you know who voted for this nonsense, and maybe we can begin the process of changing it. I defy anyone to argue with a straight face that schools should not be accountable for failing to do their simple and mandatory due diligence to weed out the worst elements of society.

Finally, I do not wish to imply that I am being overly critical of teachers or schools. It goes without saying that almost all teachers are dedicated, caring, (and largely underpaid)professionals who have positively influenced more children than we can ever count. But the problem of offenders and children is a societal problem that transcends all professions, and we are frequently reminded in the newspapers about similar instances like this(in fact, since 2000, 85 Ohio teachers have had inappropriate sexual relations with students, according to a 2007 Columbus Dispatch article).

Almost all schools have a "zero tolerance" policy for fighting in schools. If your child is punched in school and fights back, he or she is suspended, even if he or she did not instigate the fight. Isn't it time schools instituted a similar policy for protecting children at school from malevolent adults, and shouldn't they be legally accountable when they drop the ball? And should we hold schools to the same stringent standards our children are held to when it comes to schools protecting our children from some of the worst elements of society? Think about it: your kid gets punched, defends himself, and is suspended for it. But if a school district takes no measures to protect your child from a child molester, who infiltrates the school and harms your child, the district gets a free pass, known as "immunity." It's head shaking to say the least.

Court to Hear Molestation Case article

Court to Hear Molestation-Case Issues
Shane Hoover
Canton Repository
November 1, 2007

CANTON: The parents of two children molested by a chess coach will have their case heard by the state’s highest court.
At issue: Whether school districts and other government agencies should be excused for acts of negligence that occur off their grounds or property.
In 2005, the parents sued Massillon City Schools, saying volunteer coach John H. Smith repeatedly molested their children during after-school chess classes.
Smith started teaching chess at York and Franklin schools in 1997 through the Stark County Chess Federation.
The district didn’t conduct a criminal background check on Smith, who had spent two years in prison for gross sexual imposition. He stopped coaching during the 2000-01 school year after officials learned of his past.
Acting on tips, police opened an investigation and Smith admitted to fondling two of his students. He pleaded guilty in 2002 to gross sexual imposition charges and was sentenced to four years in prison.
The parents, suing under pseudonyms, argued that Smith was a school employee and the chess club was a school-sponsored activity.
But the school didn’t have a contract with Smith, nor did it pay him. And the fondling occurred off school grounds.
The district argued that is was immune from liability, and former Common Please Judge Sara Loi ruled in its favor. The decision was upheld earlier this year by the 5th District Court of Appeals, which said the school district wasn’t responsible for what happened off school property.
Ohio Supreme Court agreed Wednesday to look at the case.
Massillon Superintendent Fred Blosser declined to comment on the case, citing the advice of the district’s attorneys.
Local attorneys Brian R. Wilson and Don M. Benson represent the parents.
Wilson said the district shouldn’t be able to stand behind a shield of immunity when the relationship between the children and Smith was fostered at school.
“Something has to give here,” Wilson said. “I can’t think of a worse combination than small children and a convicted child molester.”

The Supreme Court also agreed to hear a Stark County case involving the imposition of post-prison obligations on a defendant after the initial sentencing hearing.

Proof Not All Lawyers The Same-- article excerpt

Below is another article outlining our attempts to place limits on lawyer solicitation letters..........

April 18, 2005
Excerpt from the Akron Beacon Journal

A group of trial lawyers from Stark County -- led by Canton attorney Brian Wilson -- is pushing the Ohio Supreme Court to bar lawyers from soliciting accident victims by mail until 30 days after a crash. It would take a simple majority vote of the court's seven justices to adopt the change.

Chief Justice Thomas Moyer has said he favors a 30-day limit.

Brian Wilson, President of the Stark County Trial Lawyers, answered questions about the proposal:

Q: Why seek a 30-day ban?

A: The steady creep of these letters. Ten years ago, if you were in an accident, you were likely to get a couple of these letters. Now, you might get 10 letters and two videos and some chiropractic solicitations stuffed in your mailbox. And the 98 percent of us trial lawyers who don't send these letters hear it (from jurors) when we pick a jury. The consensus is almost unanimous: People hate (the letters). Those of us who don't send them are sick and tired of being lumped in with those who do send them.

Q: What's the reaction from fellow lawyers?

A: Almost all of our colleagues have said, "Go get 'em!" A few have complained that if the 30-day ban sticks, insurance companies will take early advantage of people in accidents. But these (solicitation) letters are not public service announcements; they're business pitches. . . . Most people instinctively know when they're not being treated fairly by an insurance company. Like Bob Dylan once said, "You don't need a weatherman to know which way the wind blows."

Q: Is there any middle ground?

A: Unfortunately, a 30-day ban is the only middle ground. The U.S. Supreme Court has ruled that attorneys have a right of free speech under the First Amendment to send these letters. So we can't ask that they be banned altogether.

Q: Do other states have such prohibitions?

A: Florida passed a 30-day ban on these letters, and it was held to be constitutional (by the U.S. Supreme Court), so that's the model we are working from.

Not All Of Us Send (Or Even Condone) Lawyer Solicitation Letters

We've all heard about or seen those "lawyer letters" that arrive just a few days after someone's been in a crash. If you've been in an accident, you'll receive scads of them--along with videos, DVD's, refrigerator magnets, and, conveniently, a copy of usually the first page of your accident report. I can tell you that well over 90% of attorneys do not engage in this practice. Rick and I have always believed that this practice represents the worst of our profession, and feeds into the "ambulance chasing" stereotype so prevalent among us. Because of the pervasive nature of these letters, is it any wonder that the public thinks we're all chasing cases?

As proof of our objection to this practice, our local trial lawyers' group asked The Supreme Court Of Ohio to institute a 30 day ban on sending such letters. Why a 30 day ban and not an outright ban? Unfortunately, the U.S. Supreme Court in the 1970's upheld the right of attorneys to send these letters as a First Amendment right of free speech. Therefore, states can't pass a law banning the right to send them.

We suprisingly had alot of support from our colleagues across the state, and below is an excerpt of a newspaper article that covered our attempts to place limits on this practice. Unfortunately, the Ohio Supreme Court refused to enact the 30 day ban, which was disappointing given the general public's distaste for this practice. Attorneys who send these letters have every right to do so, and we who don't agree with this business practice have every right to criticize it.

And if you want to hire an attorney or firm that acquires clients in this manner, that is your right as well. Below is an excerpt from a newspaper article discussing out attempts to limit direct mail solicitation...

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March 10, 2005
Excerpt from the Akron Beacon Journal

A group of trial attorneys from Stark County wants the Ohio Supreme Court to call off the ambulance chasers -- at least until the bruises have time to heal.

The Stark County Academy of Trial Lawyers has asked the high court to consider instituting rules that would prevent lawyers from soliciting accident victims by mail until a month after their crashes. One Akron personal injury lawyer, however, believes the action is a bad idea because it would make accident victims the unwitting prey of insurance adjusters.

Ohio Supreme Court Chief Justice Thomas Moyer said he hopes to reopen discussions on the issue, and personally favors a 30-day limit.

Brian Wilson, president of the Stark association, said his group would prefer to see the mail solicitation of accident victims abolished completely, but knows that would infringe lawyers' First Amendment right to free speech.

The group is hoping Ohio will consider instituting a 30-day rule, which is in place in other states. A 30-day delay also has been upheld by the U.S. Supreme Court, Wilson added.

"It can't be banned. The question is: How can it be limited?" he said. "The 30-day ban will bring a greater sense of decency to the whole process… with a 30-day ban, people's immediate sense of privacy is not invaded by a letter which arrives within a few days after either a minor accident or a horrible calamity," Wilson said.

Runaway Jury Verdicts: Not In Stark County

For the last five years, insurance companies that insure physicians and hospitals have spent millions lobbying for--and receiving--medical malpractice legal "reforms." The insurance companies and medical associations claimed that "runaway jury awards" were the root cause of increased malpractice premiums in early 2000-2002, and therefore juries needed to be reigned in by "capping" medical malpractice lawsuits. The industry got its wish in 2004 when The Ohio Legislature passed laws which, among other things, limit malpractice victims' recovery for pain and suffering (like losing a limb or being in a coma or wheelchair) to $250,000. The result? The legislature TRADED YOUR RIGHT to be compensated for a legitimate medical error to an arbitrary, one size fits all "cap" so that insurance companies can keep malpractice premiums down, for the collective good of us all(sounds alot like communism if you think about it, doesn't it?).

The problem, however, was not runaway jury verdicts. Rather, insurance companies spent millions spent on newspaper, TV, and radio ads claiming that doctors were leaving Ohio(or were going to leave soon) because of high malpractice premiums-- and blamed it ALL on lawsuits. In fact, Ohio was one of 23 states deemed to be "in crisis" by the American Medical Association(this of course raised the question of just where all these doctors were going if over half of our states were in "crisis").

Two things were obvious to we who pursue malpractice cases. First, the doctors were being unfairly gouged by their insurance companies. Why? Malpractice insurers were losing their shirts due to stock market losses, and jacked up premiums on doctors sometimes well over 100% to make up for the shortfall. Doctors had every right to complain about this economic highjacking.

Second, we were asking over and over again: where's all these "runaway" medical malpractice verdicts we keep hearing about? We knew for years that juries were very conservative in Ohio and particularly in Stark County when it came to medical malpractice cases. So, our local trial lawyers association (now known as The Stark County Academy For Justice) commissioned a study spanning over 10 years and covering every medical malpractice case tried to a jury in Stark County since 1993. There were 84 medical malpractice jury trials over an 11 year period. The average verdict? $257,000. You can read the results in the article below.

Of course, these facts didn't stop the Legislature from giving the malpractice insurance companies every "reform" they asked for. Now here's the final insult: St Paul Insurance Company, an insurer which screamed the loudest about skyrocketing malpractice rates, paid its CEO over $32 MILLION in 2002 (that's not a typo). His income wasn't capped or limited!! If the Legislature were going to be FAIR about trying to fix a so called "crisis," why should a patient who lost an arm of leg due to malpractice have his or her rights sacrificed while there's no similar cap on a CEO's $32 million compensation package????

Score another victory for the insurance industry, and yet another blow to Ohioans who are the victims of preventable medical mistakes. Once again, money talks. We'll be re-visiting this topic many more times since we are now starting to see some trends from all these "reforms," and (suprise) malpractice premiums are not coming down as fast as they skyrocketed............

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Runaway Jury Awards: Not in Stark County
In 4 cases in decade, plaintiffs awarded $1 million or more
March 8, 2004
T.C. Brown
Plain Dealer
COLUMBUS – Runaway jury awards haven’t been a problem in Stark County, according to 11 years of court records compiled by local trial attorneys.
The Stark County Trial Lawyers Association compiled the results of every trial between 1993 and 2003, more than 500 cases. It’s the most comprehensive study known in Ohio.
The medical profession won 64 of the 84 medical malpractice trials over that period in Stark County, and juries awarded $1 million or more in only four cases that plaintiffs won.
In nonmedical personal-injury verdicts, juries awarded more than $1 million five times. In 10 cases, juries gave out punitive damages.
The highest punitive award was for $8 million for a train collision that killed three teenagers and injured three others. Most other punitive awards were under $1 million.
Our conclusion was that the results obliterated the argument that runaway juries were wreaking havoc on the civil justice system,” said Brian Wilson, president of the local bar association.
“The reality didn’t match the anecdotes or the myth.”

The Ohio House is considering making it a law for all counties to compile aggregate information on civil jury trials.

Jury Instruction Reform--Long Overdue, But Don't Count On It Soon.......

We attorneys all too often take for granted that juries at the end of a long and difficult case will understand and digest complex legal instructions given to them for the first time. That assumption MIGHT be true if jury instructions were written in plain English, and not in "legalese." Some instructions are acceptable and easily understood, but many are not, and it's not fair to ask juries to understand confusing and foreign instructions thrown at them for the first (and last) time.

I was researching a few years ago and came across a project in Iowa where that state's judges and attorneys sat down and re-wrote all instructions of law given to juries, in both criminal and civil cases, in plain English. Inspired by that Hurculean effort, I wrote the article below for Ohio Lawyer Magazine. My hope was that the article would be a tiny spark to nudge Ohio to follow suit. Guess what? Nothing happened. So much for that idea. I still think the idea's a good one, though. After all, we ask alot of juries, and they sacrifice alot to participate in one of the most cherished rights we enjoy as Americans. Is it asking too much to cut out some of the fat and verbiage from many of these instructions so juries can do their job better?

Below is the article on jury instruction reform..........


Looking through the lens of the jury: Jury instruction reform

The famous observer of America, Alexis de Tocqueville, wrote:

The jury … may be regarded as a gratuitous public school, ever open, in which every juror learns his rights … and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties …. I look upon the [jury] as one of the most efficacious means for the education of the people which society can employ.1

De Tocqueville never had to decipher pages of jury instructions on a Friday afternoon at the end of a week-long jury trial.

Jury instructions can be likened to a product assembly manual. They are the guide by which a jury constructs all the pieces (the evidence) in an attempt to assemble a just and fair decision. No doubt we have all experienced the frustrating process of assembling a product based on "easy instructions," only to be perplexed and frustrated by nonsensical instructions and leftover parts.

Similarly, the cardinal importance of jury instructions to a jury’s decision-making process cannot be denied. We all have witnessed the frequent questions jurors ask about particular words or phrases contained in the instructions and their meanings. More often than not, a jury will read and reread the instructions when given a copy to take back to the jury room. Indeed, jury instructions are so fundamental to Ohio civil jurisprudence that jurors are deemed to have understood and followed the instructions given to them.2

The unfortunate reality, however, is that the judicial "presumption of understanding" accorded to jury instructions is often little more than legal fiction.

Over the last two decades, the perceived competence of civil juries has been scrutinized, criticized and even attacked. Criticism of juror intellectual capacity has led to a number of proposed reforms aimed at eliminating juries altogether, to replacing them with blue ribbon panels or special masters. Attacks on juries’ collective integrity and the quality of their verdicts have also spawned clarion calls for reform. Legal reform issues aside, there is ample social science data that confusing or incomprehensible jury instructions impede juror decision-making.3

Ironically, perhaps what has gained more favor than replacing juries is helping them comprehend the legal rules that are supposed to govern their verdicts. Many states have been at the forefront of infusing their standard civil instructions with the much-needed oxygen of plain language. For instance, in 1995, Arizona enacted broad-based "jury reform," which included a plain-English overhaul of civil jury instructions.4 In fact, Arizona’s Civil Jury Instruction Committee includes a linguistics professor to advise the committee on easy-to-use versions of standard instructions.

But perhaps no state has been a bigger trailblazer in creating easy to use jury instructions than Iowa. In 1986, the Special Committee on Uniform Court Instructions of the Iowa State Bar Association completed a plain-English redraft of the Iowa Civil Jury Instructions. The Iowa Supreme Court, on reviewing the redraft, aptly noted:

It is readily apparent that juries will better understand legal principles explained by the instructions under the Plain English Redraft. The quality of justice will be improved. The bench, the bar, and, especially, the public, will benefit from the Committee’s work in producing the Plain English Redraft.

The committee noted that "the purpose of jury instructions is to give the law to the jury in a language they can understand," and surmised that the best way to do this was "to write jury instructions in plain English." To help achieve this goal, it hired a linguist to help translate "legalese" into plain English.

The general guidelines for drafting jury instructions followed by the Iowa Committee are that "each instruction shall be: an accurate statement of the law; as brief and concise as practicable; understandable to the average juror; and neutral, unslanted and free of argument."

The specific guidelines for drafting plain-English jury instructions are as follows:

• Use plain English, simple, short and concrete words.

• Make it look and sound like talk.

• Use short sentences.

• Use short paragraphs.

• Omit unnecessary words.

• Use active voice rather than passive.

• Avoid negative forms, and especially double negatives.

• Use personal pronouns, "I" for the judge and "you" for the jury.

• Whenever possible, leave out the words "as to," "determine," "facilitate," "herein," "hereof," "however," "if any," "therefrom," "theretofore," "thereof," "otherwise," "require," "that," "the," "whether" and "which."

• Replace "locate" with "find"; "prior to" with "before"; "sufficient" with "enough"; "in the event that" with "if."

• Put prepositions at the end whenever it sounds right to do so.

• Use sex neutral language. Eliminate the pronoun; repeat the noun; use a synonym for the noun; change the pronoun to "the," "a," "this" and the like; use "one"; use "it"; use the imperative; reword; and use the passive (the last resort).

• Where appropriate for clarity and ease of understanding, use lay language in place of exact case or statutory language so long as an accurate statement of the law is maintained.

Comparing apples to apples

Contrast Ohio’s medical negligence instruction to Iowa’s plain-English instructions. The standard "nonspecialist" medical negligence charge is based on the seminal case of Bruni v. Tatsumi:

The existence of a physician-patient relationship imposes on the physician the duty to act as would a physician of ordinary skill, care and diligence under like or similar conditions or circumstances. The standard of care is to do those things which such a physician would do and refrain from doing those things which such a physician would not do. If you find by the greater weight of the evidence that defendant failed to use that standard of care, then you may find he was negligent.5

Compare the 87-word Bruni charge to Iowa’s 28-word charge:

A physician must use the degree of skill, care and learning ordinarily possessed and exercised by other physicians in similar circumstances. A violation of this duty is negligence.

Iowa’s standard charge is not materially different in substance from Ohio’s Bruni charge. But, linguistically speaking, the difference between Iowa’s instruction and Ohio’s is the difference between lightning and a lightning bug. What is different is that the Iowa charge is free of repetition and excess verbiage. Trimmed of its grammatical fat, it provides a shining example of a plain-English instruction that is understandable, yet legally accurate.

The "specialist" charge is equally pristine and streamlined and is substantively no different than Ohio’s specialist charge. Below is Ohio’s version:

A specialist is a physician who holds himself out as specially trained, skilled and qualified in a particular branch of medicine. The standard of care for a physician in the practice of specialty is that of a reasonable specialist practicing medicine in that same specialty, regardless of where he/she practices. A specialist in any one branch has the same standard of care as all other physicians in that branch. If you find by the greater weight of the evidence that defendant failed to use that standard of care, then you may find that he/she was negligent.

Now Iowa’s specialist charge:

Physicians who hold themselves out as specialists must use the degree of skill, care and learning ordinarily possessed and exercised by specialists in similar circumstances, not merely the average skill and care of a general practitioner. A violation of this duty is negligence.

Again, it would be difficult to argue that the Iowa specialist charge is substantively different from Ohio’s.

Iowa’s overhaul of its civil instructions was not limited to medical negligence issues. Every civil instruction was simplified. For example, the instruction on preponderance of the evidence provides:

Whenever a party must prove something they must do so by the preponderance of the evidence.

Preponderance of the evidence is evidence that is more convincing than opposing evidence. Preponderance of the evidence does not depend upon the number of witnesses testifying on one side or another.

Compare Ohio’s preponderance instructions:

Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it outweighs or overbalances in your mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may, or may not, be identical with (quantity) (the greater number of witnesses).

In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence, regardless of who produced it.

If the weight of the evidence is equally balanced, or if you are unable to determine which side of an issue has the preponderance, the party who has the burden of proof has not established such issue by a preponderance of the evidence.

Although both are acceptable, the brevity and clarity of Iowa’s charge clearly distinguishes it as more understandable and easy to use.6

In essence, Iowa performed major surgery on its pattern jury instructions, and the result is obvious: Plain English can exist in perfect harmony with legal accuracy.

States adopting plain-English instructions have recognized an unintended consequence that has plagued traditional use of "pattern" jury instructions: The laudable goal of legal accuracy has inflicted collateral damage to the syntax, grammar and in the end, basic comprehension of instructions. This is understandable. Historically, the labor of pattern jury instruction committees has been devoted, for good reason, to ensuring that instructions are legally accurate for purposes of both trial fairness and appellate review. This approach has proven to be a mixed bag, however:

The primary goals of pattern jury instructions are to increase the legal accuracy of instructions and thereby avoid reversals, eliminate argumentative language, save time, and, finally, improve juror comprehension and instructions. Pattern instruction committees have been, for the most part, successful in achieving some of these goals, particularly a reduction in the number of appeals or reversals based on inaccurate instructions. They have generally failed, however, in their efforts to improve juror comprehension.

There are several reasons for this failure. Pattern instructions are often taken directly from the language of Appellate Court opinions or statutes, written for legal audiences rather than lay jurors. Even instructions drafted with juror comprehension in mind still contain complicated legal terminology, due to the fact that committees are made up of lawyers and judges who often do not realize that certain language is confusing and unfamiliar to those outside the legal profession ….7

In a 1965 speech that can only be considered visionary in retrospect, Federal District Judge Edward J. Devitt recognized these shortcomings:

Instructions should be phrased in clear, concise language applicable to the case. Sometimes counsel will quote verbatim from an Appellate Court decision dwelling on a point involved in the trial and urge it as a proposed instruction. Appellate Court opinions are written for a purpose different from that for which jury instructions are designed. The point of law may be controlling, but not the language. It is the legal principle, not the words expressing it, which is pertinent and which will be helpful to the jury. Legal points from decided cases should be couched in language appropriate to the facts and to the parties in the lawsuit.

The use of legal terminology in instructions should be avoided as much as possible …. To the extent possible, we should use that which Chief Judge Alfred Murrah calls the ‘common speech of man.’8

A few examples illustrate the tug and pull between drafting legally accurate instructions and making them understandable to lay persons. Consider the term "ordinary negligence," a term lawyers and judges would use freely without thinking twice about its import. Is all negligence "ordinary"? What if a jury considers the negligence to be "extraordinary"? Is extraordinary negligence counted as negligence? Is this term confusing or unnecessary? Apparently the North Dakota State Pattern Jury Committee believed so, for it moved to excise the term "ordinary" from its working definition of negligence after debating the issue.9 While the committee should be commended for removing this confusion, it is akin to killing one termite when a more potent insecticide is called for.

Similarly, what is meant by the phrase "physician of ordinary skill" in the standard Ohio medical negligence charge? What if the defendant physician possesses "extraordinary" skill in his or her profession? Can he or she never be negligent if, the "standard of care" refers simply to physicians of "ordinary" skill? Could the instruction be interpreted in this manner by a group of strangers who hear these words for the first time?

The reality is that jurors may well have difficulty understanding these concepts, and "unfortunately, judges sometimes assume that the words are part of ordinary speech when in fact they are technical terms with a legal meaning unknown to the lay public."10

If lawyers and judges can debate and pick apart the meaning and relevance of these terms of art, how can a jury be expected to understand and correctly apply such unfamiliar phrases? The larger point here is that jury instructions form the intersection between law and facts. The premise of the plain-English language reform movement is that legally accurate instructions do not make for a safe intersection merely because they are legally accurate.


Serious consideration should be given to adopting Iowa’s plain-language instructions to the extent they comport with Ohio law. Admittedly, this is no small undertaking. Any proposed revisions should ideally include a linguist who can advise on plain-English phraseology. But the good news is that much of this fertile ground has been already plowed by other states.

In no way should adopting plain-language instructions be considered a dismantling of present instructions. Rather, plain language revisions should be considered as fortifying the sound foundation of previous pattern instruction committees by adopting an easy-to-use version of previous instructions.

But the time has come for change in Ohio. How many times have we as lawyers been told, lectured or even scolded to "keep it simple," "be brief," or "get to the point" when examining witnesses, giving final arguments or writing appellate briefs? Shouldn’t the same considerations of simplicity, brevity and clarity apply with equal force to jury instructions?

It is a little known fact that buried in Volume One of "Ohio Jury Instructions" is Section 1.83, which discusses the necessity of using "direct and simple English" in jury instructions. It even quotes a Supreme Court of Ohio opinion discussing the importance of well-crafted, understandable instructions:

It must be remembered that juries are composed of ordinary men and women, not trained grammarians, and that fine distinctions in the meaning of words or phrases are not ordinarily recognized by the average layperson. Thus, in considering the propriety of any instruction, the meaning of the words used in the instruction must be thought of in their common meaning to the layperson and not what such words mean to the grammarian or the trained legal mind.11

It is time we took this admonition to heart. In the final analysis, the jury is the ultimate audience of the instructions written and edited by the judge and counsel. Unless we provide them with understandable tools to construct justice, it is analogous to a movie that is lauded by the critics but bombs at the box office.

Brian R. Wilson is a lawyer in Canton.


1Democracy in America 295-296.

2Pang v. Minch, 53 Ohio St.3d 186 (1990).

3Strawn and Buchanan, "Jury Confusion: A Threat To Justice," 59 Judicature 478 (1976); R. Hastoe, S. Penrod, and N. Pennington, "Inside the Jury" (1983); Walter W. Steele Jr. and Elizabeth G. Thornburg, "Jury Instructions: A Persistent Failure to Communicate," 67 North Carolina L. Rev. 77 (1988); Elizabeth Chilton and Patricia Henley, "Jury Instructions: Helping Jurors Understand the Evidence and the Law," Public Law Research Institute (1996). The authors noted research studies from Florida, California and Michigan involving mock juries that were presented with both ordinary "pattern instructions" and rewritten, plain-English instructions. According to the authors, juror comprehension dramatically increased with the rewritten instructions.

4In 1996, California established a task force on jury reform that included a committee of lawyers, judges, linguistics professors and lay people to draft jury instructions that were understandable to jurors. See P. Tiersma, "The Rocky Road to Legal Reform: Improving the Language of Jury Instructions" (February 2001).

546 Ohio St.2d 127 (1976).

6The California Task Force opted to avoid the term "preponderance" altogether and proposed informing the jury to decide an issue as "more likely than not." Tiersma, The Rocky Road, at 33.

7Chilton and Henley, supra, at 14-15.

8Speech delivered at the 10th Circuit Judicial Conference on July 9, 1965.

9North Dakota Pattern Jury Instruction Commission, October 2000 meeting minutes.

10Tiersma, supra, at 32. He notes that legal homonyms such as "brief," "burglary," "mayhem," "complaint," "aggravation" and others are "potentially dangerous because a lay person may think he knows what it means, whereas in reality the term may mean something quite different in the law."

11Bahm v. Pittsburgh and Lake Erie R. Co., 6 Ohio St.2d 192, 194 (1996).

Welcome! Our First Official Post!

Welcome to the first official posting of the Nicodemo and Wilson blog. Our goal in creating this site is to inform our clients, and the consumer public, of what is happening in the legal world in Ohio and nationwide. After approximately 20 years of representing Ohioans harmed in a variety of ways, one thing stands out: the public perception of our legal system is chock full of misperception, antecdote, and misinformation. Brick by brick, we hope to dismantle these misperceptions, and share our thoughts and experiences, in the hope that we can educate readers as to how our justice system REALLY works. So, with generous portions of reality, sprinkled with some humor and levity thrown in for good measure, we hope you'll enjoy our site and maybe learn a thing or two along the way.

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