Getting Proper Coverage If You Drive A Company Car

Here's the scenario: You drive a company car. You were told by someone in your company that the car has "full coverage." Months or years later, you are seriously injured in a crash by an uninsured motorist. You miss months or years or work, or worse yet can't return to your job because of your injuries.

You come to learn that your "full coverage" on the company car work did not include uninsured/underinsured motorists coverage because your company declined the coverage(perfectly legal in Ohio and other states).

If you were injured on the job, workers compensation laws MIGHT cover your bills and a portion of your lost wages. But what about compensation for the rest of your wages, and your permanent injuries? Worse yet, what if you weren't on the job?

How can you protect yourself in this situation? More than anything else, you need to have high levels of uninsured/underinsured motorists (UM/UIM) coverage--more than the standard $100,000 limits most people have (I explain why in my "How To Buy Car Insurance" book). This coverage protects YOU if you're injured by a driver with little or no liability insurance.

Armed with the knowledge in the book, there are basically two things you can do to find out whether your employer has purchased enough UM/UIM coverage to protect you. First, ask your HR department or someone in charge of insurance matters: "Is there UM/UIM coverage on my car and what is the amount of coverage?" Ask to see a copy of the "Declarations Sheet" for your car. But what if you are not comfortable asking this for fear of "making waves?" There is still something you can do.

Ask your auto agent about purchasing "Drive Other Car" coverage. This coverage basically covers you for other autos that you drive that you do not own. You may ask: "Why doesn't MY auto insurance cover me when I drive another car?"

Welcome to the world of fine print "exclusions" in your policy. Buried in your policy is probably a "non-covered auto" exclusion. It basically says that your auto policy does not cover you when you drive another vehicle you do not own when it is made "available for your regular use."

Here's the beauty of asking your agent about purchasing "drive other car" coverage. He or she will be able to find out from your employer whether your company car has UM/UIM coverage as a means of determining whether you even need to purchase this coverage.

The absolute WORST thing you can do is drive a car that has little to no UM/UIM coverage. In over twenty years of representing auto accident victims, I have seen, in broken record fashion, a repeating scenario: clients seriously injured by drivers with very little or no insurance. And if you do not have high levels of UM/UIM coverage, guess who is left holding the huge bag of bills and unreimbursed lost wages (not to mention nothing to show for your permanent injuries)?

That would be you--which makes you twice the victim.

Cellphone Industry Should Not Be Liable For Talking Drivers Who Cause Accidents

The issue of "distracted drivers" (and distracted pilots)continues to make news. Recently, an Oklahoma woman sued the wireless cellphone provider of a driver who killed her mother while talking on a cellphone.

This is a novel lawsuit. The claim? That the cellphone industry failed to provide appropriate warnings to users in light of the fact that it was foreseeable that users would talk while driving.

Negligent "failure to warn" cases can be legitimate when the product hazard is not obvious. For example, if a children's go kart can burst into flames if it is tipped on its side, a manufacturer should have a duty to place a conspicuous warning on the product and in the manual (an actual case we litigated a few years ago).

But the problem with the "cellphone lawsuit" is that, unlike the latent risk of something like a fire, it is common knowledge that it can be dangerous to talk or text while driving. The issue will therefore be: would an appropriate warning have prevented the driver from talking on his phone? Probably not.

Look for this case to be dismissed. And win or lose, I'll bet that cellphone providers will change their ways and start to include some specific warnings on the dangers of talking or texting while driving, which is probably not a bad thing anyway.

Medical Near Misses--Where Do They Go?

When two planes nearly collide in mid air, it is newsworthy and we immediately hear about it. But if a medical "near miss" tree falls in the forest of the medical system, can you hear it? In other words, where does it go? Is it reported, acted upon, and corrected so it will never come to fruition and harm a patient?

An example will bring this issue to light. The other day, my wife visited the pharmacy at a "chain" store to pick up a medication for one of our sons. When she returned home, there were four bottles in the bag. One was our son's medication. The other three were a chemotherapy drug, and anti-nausea medication, and another medication I can't even remember. Obviously, we were given some poor cancer patient's chemo drugs. Ugh.

Aghast, my wife called the pharmacy. They apologized and asked her to return the meds, which she did. The pharmacist told her the other three meds "must have fallen in the bag." Yeah, right. So what happened after she returned the meds? Did the pharmacy fill out an incident report and voluntarily report it to the retailer? Was an investigation initiated to get to the root cause of this egregious error and establish or modify existing safety systems to make sure this error did not happen again? Or did the pharmacy simply breathe a sigh of relief that such a colossal screw up didn't result in serious harm to the patient and go about its business like nothing happened (the ostrich approach)?

We'll never know. But it makes me wonder that, if this happens again, and a pateint who is harmed brings a lawsuit, will lawyers for the pharmacy say with a straight face: "this pharmacy has a spotless record and nothing like this has never happened before."

Just so you know, Ohio is one of 18 states that have NO requirement to report "adverse events" or even things like hospital acquired infections. So if ACTUAL adverse events are not even required to be reported, what do you think happens to near misses?

So, it appears that your only remedy is to go over the head of who was responsible for the error and try to report it yourself. Otherwise, you may be standing on the tip of an iceberg and not even know it. And somewhere down the road it may just crash into someone else.

These mistakes will continue to occur unless and until the medical delivery system adopts a zero tolerance policy for errors similar to the airline industry.

Where Do We Turn When Trust Is Betrayed?

I found this recent article about a Gallup survey on trust that decries a general lack of societal trust. I'm not so sure this recent "study" is all that illuminating. But it got me thinking in general about the notion of trust in our society and how it intersects with the law.

By and large, we are a trusting society. The other day I was Christmas shopping and made some purchases at Dick's Sporting Goods. The checkout girl asked if I wanted to make a donation to St. Jude's Children Hospital, which I did. I had the fleeting thought: "How do I know if my donation will ever make it in full or in part to St. Jude's?" The answer was simple: you trust that it will.

Similarly, we trust that the fast food burger or sub we eat won't be tainted with e coli. We trust that the financial institutions that hold and invest our money won't defraud us. And we still place an inordinate amount of trust that our hospitals and doctors will safely treat us.

Simply, our society is built on trust. So where so we turn when that trust is shattered by any of these institutions? Where is the accountability for breaking our trust and harming us in some fashion? The only avenue of redemption we have is the legal system. It too is founded on trust and is by no means perfect either, but the only alternative is personal revenge and taking the law into our own hands, which is chaos, the antithesis of trust.

So I have to wonder why so many people are clammering for a legal "reform" movement that seeks to chop down our right of legal redress when that sacred trust is broken. What is even more perplexing is that this movement is moving forward on the heels of unprecedented Wall Street financial fraud that assaulted millions of hard working Americans' 401K's and other retirement plans, and practically brought our national economy to its knees.

Our legal system is the last line of defense when our sacred trust is fractured. Why we are seeking to dilute it at this crossroads in our nation's history defies logic, reason, and history.

Hospital Boards More Concerned With Financial Issues Than Patient Safety?

I'm not a gambler. Never been to Vegas and it's not even on my bucket list, much less my radar screen. But I am willing to bet that, if you asked any living, breathing human being with half a brain: "What should a hospital's Number One priority be," the response would be universal: quality of care, and patient safety.

However, a recent survey of hospital boards reveals a shocking result: quality of care is taking a back seat to the business and financial aspects of running a hospital. Sixty six percent of the 722 Hospital Board Chairs surveyed listed quality of care as third on the list of priorities, which was not suprising to one former hospital CEO:

The study results are not surprising, said James L. Reinertsen, MD, a health care consultant and former hospital CEO. He was not involved in the study.

"Boards tend to think that quality and safety are already pretty good or OK and that it's not an issue," Dr. Reinertsen said. "They're looking for leaders at the board level and executive leadership to work on financial issues, strategic issues, growth issues and the whole list of what I'd call 'business issues' within health care systems. They take the core business of delivering care kind of for granted."

"Growth" and "business issues" more important than quality of care? Now think of all the fancy ads and brochures and websites hospitals pour millions into that tout--you guessed it--quality of care. Come to think of it, I've never seen any hospital ad campaigns that said: "Our number one priority is the business of growing our hospital."

This survey proves the obvious: hospitals are a business. Like any business, if they run it ethically and don't cut corners with patient care, they deserve to make a profit. And grow and prosper. But when committment to patient safety and quality of care is not "Job One" (as Ford Motors used to say), what follows is obvious: a pattern of preventable medical errors. If you think this is an isolated problem, I invite you to read a recent nationwide report that chronicles the scope of egregious medical errors in the U.S: Dead By Mistake.

These two recent news items surface at a critical time, as hospitals and their insurers are lobbying for national medical liability reforms that limit what injured patients can recover when legitimately harmed by preventable medical mistakes.

The lesson: there's a lot going on behind the curtain of fancy ad campaigns, both on the floors of hospitals, and apparently in the Board rooms as well. And some of it is not good.

Ohio Should Pass A "Payee Notification" Law To Protect Consumers From Fraudulent And Unethical Attorneys

My most recent post discussed the rampant health care fraud that has gone on for years in the medical profession. Well, we in the legal profession have our own warts, and it's only fair to bring our own shortcomings to the light of day as well. Since 1985, Ohio has had in place a state agency known as "The Client's Security Fund." This organization is devoted to securing restitution for clients ripped off by unscrupulous attorneys. According to its 2009 Annual Report:

Since its inception in 1985, the fund has awarded more than $14 million to 1,795 former law clients (see Appendix C). All fund losses are attributable to less than 1 percent of Ohio’s more than 56,320 licensed attorneys, 42,164 of whom are engaged in the active practice of law. This report confirms that the verwhelming majority of Ohio lawyers observe high standards of integrity when entrusted with law client money or property. However, the dishonest acts of a few can affect the public’s image of and confidence in the legal profession as a whole. The Clients’ Security Fund seeks to restore public confidence in the legal profession by reimbursing law clients for losses sustained as a result of the dishonest conduct of their attorneys.

Some states have passed "payee notification" laws that notify clients by letter that their case has settled and that the settlement check has been mailed to their attorney. The purpose is obvious: to prevent an unethical attorney from forging the client's signature and absconding with the money.

Ohio should pass a similar law. Some of my colleagues do not agree with this law and consider it as offensive and an intrusion on their attorney-client relationship.

I couldn't disagree more. We as a profession should encourage any law that protects innocent clients from being ripped off by attorneys who have no business practicing law.

Until such a law is passed, the lesson here is: there are lots of attorneys that make all sorts of claims in advertisements. Some even solicit you after an accident. And some are shysters. So do your homework and carefully research the attorney or firm you're looking to hire. Ask for plenty of word of mouth references, and look to see who's providing you with EVIDENCE of their competence, beyond all the "puffery."

Why Does Health Care Fraud Play A Back Seat To Health Care "Reform?"

Justinian Lane has an insightful post about an issue often ignored in the national health care debate--that health care fraud costs us three times more than the national costs associated with medical malpractice. This caused me to do a bit of my own research, where I found The Department Of Health And Human Services And Department Of Justice Health Care Fraud And Abuse Conrtol Report For The Fiscal Year 2008 (I think the title of this report needs to be a bit longer...) Some mind blowing stats of the Report...

During FY 2008, the Federal Government won or negotiated approximately $1 billion in judgments and settlements2, and it attained additional administrative impositions in health care fraud cases and proceedings. The Medicare Trust Fund received transfers of approximately $1.94 billion during this period as a result of these efforts, as well as those of preceding years, in addition to over $344 million in Federal Medicaid money similarly transferred separately to the Treasury as a result of these efforts. The HCFAC account has returned over $13.1 billion to the Medicare Trust Fund since the inception of the Program in 1997.

Closer to home, an Ohio physician alone was responsible for a fraudulent billing scheme totalling $1.8 million:

An Ohio physician was sentenced to 37 months in prison after pleading guilty to conspiring to engage in a scheme to defraud Medicare and other health care benefit programs by performing medically unnecessary nuclear stress tests that involved injecting nuclear medicine into patients. During the conspiracy, the physician received at least $1.8 million in reimbursement for the medically unnecessary tests. As part of his guilty plea, the physician agreed to give up his medical license, to forfeit more than $1.8 million, and to be permanently excluded from participation in all federal health care programs.

These staggering figures include only the shysters who got caught. If we're talking billions of dollars recovered, it probably represents the tip of the iceberg as to the amount of actual fraud being perpetrated on U.S. taxpayers.

Yet, despite this rampant, continuing fraud, all some politicians want to talk about is limiting patients' right to sue even in cases of legitimate malpractice. Fraud apparently trumps fairness in this goofy debate...

Corporate Lawsuit Hypocrites

Frequently I have railed on the Chamber Of Commerce, corporate America, and professional groups who have cried and moaned for years for legal or tort "reforms" making it harder for injured and ripped off individuals to sue. These groups all have one thing in common: they want to chop down your right to sue, but wish to retain THEIR right to sue you or another business without any limits or strings attached. In other words, they're a bunch of hypocrites.

Well, Joanne Doroshow at The Center For Justice And Democracy nailed this issue in a recent post. It's my thoughts exactly (only better articulated). Enjoy the gentle breeze of the truth entering the room as you read it.

A healthy and peaceful Thanksgiving to all...

What If Your Doctor Or Chiropractor Won't Bill Your Health Insurance Company After An Accident?

If you've been injured in a collision or for any other reason (a slip and fall in a store, for example), your medical provider may just tell you: "there's no need to bill your health insurance company." This provider may insist on having you sign a paper stating that you must pay their bills out of your settlement if you settle your case in the future.

If you live in Ohio and have health insurance, this practice may be illegal. Ohio law says that:

every provider or health care facility that contracts with a health insuring corporation to provide health care services to the health insuring corporation's enrollees or subscribers shall seek compensation for covered services solely from the health insuring corporation and not, under any circumstances, from the enrollees or subscribers, except for approved copayments and deductibles.

What this means is that, if you have health insurance, your medical provider must bill your health insurance company if that provider is a member of your health insurance network or plan. The reasoning is simple: if medical providers agree to be listed as members of a health insurance plan, they must abide by the rules of the health plan. In exchange for being sent or accepting patients, providers agree to be paid what is "reasonable and customary" for their billed services.

So why would a medical provider seek to skirt the agreement and Ohio law on this issue? Example: if your bill for your accident related injuries is $2000, the "reasonable and customary" payment might be $1,300. By trying to get you to bypass submitting the bill to your health insurance company, the provider is attempting to be paid dollar for dollar for his or her bill--$2,000 in the example above.

If you come across this practice, you need to report it to your health insurance company immediately. Many times I have had to write a polite letter to providers reminding them of their obligation under Ohio law to bill health insurance.

And here's why it's beneficial in almost all instances to submit your accident or collision related bills to your health insurance company.

More Insurance Company Surveillance Tactics

Recently I wrote about how insurance companies often engage in shady surveillance tactics. A recent story shows what lengths they'll stoop to, and the stupid arguments they'll make to deny disability insurance benefits.

The claimant, Rocky Whitten, broke his neck. Three of his doctors determined that he was permanently disabled. Despite this, The Hartford hired a private investigator to follow and videotape him. The surveillance did not catch him digging ditches or playing football. The videotape captured him...eating chips and salsa in a restaurant. From this "damaging" video, The Hartford had its own doctor conclude that because Whitten could use his hands to eat chips, he was capable of sedentary employment, and denied his entitlement to disability benefits he paid for under the policy.

Not suprisingly, Hartford reversed its position when ABC News broke the story and exposed Hartford's sleazy tactics and downright stupid legal position.

This story shows what efforts insurance companies will go to when it comes time to pay benefits under disability insurance policies, even in cases where claimants are legitimately and seriously injured. Companies like The Hartford figure that they have nothing to lose by using desparation surveillance tactics.

Although the article didn't say exactly when The Hartford decided to secretly video its own insured, typically insurance companies use surveillance after they take the deposition of their own insured. They will ask insureds at their deposition detailed questions as to what they can no longer do, and then hire the investigator to follow insureds in an attempt to "catch" them doing activites inconsistent with their deposition testimony.

So, if you have an injury or disability claim, the most likely time you will be followed or videoed is about two to four weeks after your deposition is taken. Just so you know....

Trial Tips--Constructing A Solid Final Argument

Final argument is what every trial attorney lives for. It's the equivalent of being on the mound with a 3-2 count in the 9th inning, or launching the final shot at the buzzer. It's the weaving together of a patchwork of evidence that hopefully makes sense to the jury at the apex of the summit of the trial.

We all look for the necessary binding or fastening materials to tie everything together. A quote, a parable, a metaphor or analogy--these are the binders we use. These are our stock in trade, and every good attorney scavenges for the right one to bring home to the jury. I collect two things. One is fishing lures and equipment, since I am a certified fishaholic. The other thing I collect is quotes, phrases, and other words of wisdom. I have a weathered notebook that I've kept in my desk for years. Every time I read a quote or phrase or story that is appealing, I copy it into my trusty journal for use in a legal brief or at trial.

A great source of inspiration for me is music lyrics. In my mind, there is no greater lyricist than Neil Young. For example, in a personal injury case involving injury to or loss of a child, "I Am A Child" offers this insightful thought:

I am a child.
I last awhile.
You can't conceive of the pleasure in my smile.

Message: you're only a child for so long. No child should have to suffer the loss of innocence or have it broken or shortened due to the carelessness of others.

I've also had cases where my clients were younger and not earning a ton of money at the time they were injured. Perhaps they were just young and immature and just getting by or not realizing their full potential. In those cases, the defense often argues, sometimes very subtly, that the serious injury to that person was no big deal since they weren't exactly setting the world on fire when they were injured. This argument has always been offensive to me, since so many of us are late bloomers, and it doesn't mean we won't someday "figure it out" and reach our potential. Neil's "Comes A Time" beautifully speaks to this issue:

Come's a time, when you're drifting.
Come's a time when you settle down.
Come's a life, feelings lifting.
Pick that baby right up off the ground.
This old world keeps spinning round.
It's a wonder tall trees ain't layin down.
There comes a time.

I think those lyrics put the idea of growing up and realizing potential into proper perspective. So here's a small tribute to my man Neil and a tip of my cap as an inspiration to me and to helping my clients. "Long may you run," Neil (another great song by him), and Happy Birthday (born Nov 12, 1945). Long may we all run as we figure out this thing called life.

Loser Pays Legislation: The Only "Winners" Are Insurance Companies

Recently, some politicians have attempted to insert a national "loser pays" rule into health care reform legislation. The "Pop Tort" website nailed the idiocy of this legislation in a recent post entitled "Loser Pays Is A Medical Malpractice Loser." In addition to the excellent points made by the post (that a "loss" in court does not mean that the case was frivolous), there is one other fatal flaw of this legislation that makes it a horrible idea: just how do you define just who is a lawsuit "loser?"

Example. A surgeon leaves a large towel or sponge or clamp inside your body after abdominal surgery. After months or years of pain, swelling, fever, and after you were misdiagnosed with every wrong condition under the sun (or worse yet told it is "all in your head"), a prudent physician finally gets a CT scan, compares it to your surgical CT, and figures out that you have a huge foreign object inside you. After hours of surgery to remove the object, which has now adhered to your insides, you are left with permenant damage to your internal organs.

You obtain the medical records. Not surprisingly, all the sponge and instrument counts in the surgical records were correct. So who dropped the ball--the hospital surgical team or the surgeon? You sue both the hospital and the surgeon. Each denies negligence and each blames the other for the colossal screw up.

You go to trial, and the jury finds that the surgeon was negligent but the hospital was not, and returns a modest verdict of $350,000. Your case was a "winner" against the surgeon but a "loser" versus the hospital. Under "loser pays" legislation, the hospital moves after the verdict to order you to pay them $150,000 in legal fees and expenses for defending the claim. If you think this figure is bloated and unrealistic, think again--hospital attorneys bill by the hour and it is not uncommon for them to charge $2-400 per hour and hire expensive experts who charge $500 per hour for a case that lasts 2 years, so you do the math...

So you won the case, but well over 50% of your recovery goes right out of your pocket to lawyers you did not hire and who actually fought against you! How does "loser pays" legislation sound now? Who does this law benefit? Not you. But the hospitals' malpractice insurance companies will make out like the bandits they are.

No wonder insurane companies are pushing for this law. For over two hundred years, we've had the rule in the U.S. that each side pays its own attorneys fees, unless the lawsuit was considered frivolous. Now, the same politicians who rail against government intervention are attempting to "federalize" medical malpractice law with a law that essentially shifts all the risk to you as the injured patient.

The end result will create a HUGE chilling effect on LEGITIMATE malpractice cases, and will cause many injured patients to simply give up over fear of shouldering a monstrous legal bill if they lose. And that's the irony of this legislation--they can leave a towel in you, and you might just be forced to "throw in the towel" against them.

What Can You Expect If Your Personal Injury Case Goes To Mediation

Mediation as a method of resolving lawsuits has become as popular as LeBron James at a Nike shoe giveaway. In McDonald's like fashion, mediators and mediation programs are popping up all over the place. Judges are ordering parties to mediation earlier than ever after a lawsuit has been filed, and it is not umcommon for parties to a lawsuit to go through multiple mediations in an effort to avoid going to trial.

So what goes on at a mediation? Usually the parties and their attorneys meet in a room with a mediator. There may be some discussion of each party's view of the case, and, depending upon the case, there may be a presentation of sorts (like a PowerPoint or something similar). Then, the parties separate while the mediator talks to both sides separately and acts as a go between in trying to forge a compromise.

Mediation, generally speaking, is a useful alternate dispute resolution tool in settling cases. Some cases really need to be resolved for whatever reason. Sometimes one party to a lawsuit is being entirely unrealistic, and needs to hear about some of the consequences of being unreasonable in his or her position. What's more, sometimes the parties simply have a good faith dispute as to the value of an injury claim, and each are able to "give in" and reach a settlement, which avoids the uncertainty of trial. But mediation is not the "magic pill" as it has been portrayed by some, and definitely has its limitations.

First, some cases just need to be tried to a verdict. I'm tired of hearing from some legal experts, and a small minority of judges for that matter, who say that a trial a "failure" because the parties couldn't settle their differences and had to have a trial. That's like a parent saying to his kid: "I realize the bully has been pummeling you daily, but why haven't you been able to settle your differences with him?"

Sometimes you can't "compromise" with a bully. Occasionally the bully needs to be taken to the woodshed and taught a lesson. This is not a "failure;" it's called justice (It worked for me in junior high anyway in a baseball dugout after I got shelled on the mound as a pitcher and discovered that the bully had filled my high tops with dirt, the last straw in a long line of abuses that ended that day in that dugout...)

Second, it is amazing to me how insulting some insurance companies' initial offers at mediation can be. Going in to any mediation, I tell my clients two things: (1) be prepared to be insulted with the initial offer(s); and (2) be prepared to walk out with civility and politeness if and when it becomes clear that the insurance company is low balling or being unrealistic.

"Someone Was Injured On My Property"-- Are You Liable?

This is a frequently asked question. The common misconception is that you as a homeowner or landowner are automatically liable if another person is injured on your property. In fact, I've heard many people say: "If someone is injured on your property, you're liable for it." This, as a general rule, is not true. You as an Ohio homeowner or landowner are liable only if you are negligent.

Some examples might illustrate the point. If a guest or relative falls down your basement steps due to his or her inattentiveness, you are not liable--you did nothing wrong. Similarly, if a neighbor trips on your sidewalk, or on a log in plain view in your backyard, again, you would not be liable.

Here is the general rule in Ohio for your duties as a landowner: you owe a duty to warn of, or make safe, any hazard that you know of or should know of if you had exercised due diligence. Now let's take that standard and apply it to an example where a landowner would be negligent and therefore liable for injuries to a guest or invitee (a person on your land with permission).

Let's say you know of a rather large hole in your backyard that is hidden by overgrown grass. You know it's there because you cut the grass. But, over the course of time, you don't fill the hole, and you don't mark it as a hole or warn anyone of the hole. You or your kids invite some friends over and a guest promptly breaks his ankle while engaging in some backyard activity.

In this instance, your failure to warn of, or make safe, a hazard like a hidden hole would probably render you negligent under Ohio premises liability law. What is important to remember, however, is that every case is different, and there are no hard and fast rules here. Change a fact or two in any one of those examples and it could mean the difference between being liable for negligence or not. The key for any landowner is to use common sense and take reasonable efforts to maintain the safety of your property.

Can A Personal Injury Case Settle During Trial?

The short answer: Yes. Over the course of 21 years of trying cases to juries, I have settled a handful of cases during trial. One was a trucking case where a driver failed to set the brakes at a loading dock and injured a forklift or "tow motor" operator who was injured when the truck drifted while the tow motor operator was loading it. Another was a "premises liability" case where a tradesman fell through a set of temporary steps defectively built on a residential housing worksite. And yet another was a medical malpractice trial that had lasted two weeks.

In each case, the defendants initially denied responsibility for what happened. But once the trial gets underway, sometimes a key witness can give powerful testimony, or an opposing witness can perform poorly, or say something downright stupid. Sometimes opposing counsel will overstep his or her bounds and needlessly attack a witness or an expert. And sometimes the judge's ruling admitting or excluding a key piece of evidence will affect one side's ability to present their case. Any one of these things can cause a party to the lawsuit to re-elavuate and possibly change its negotiating position and make a new offer during trial and before the jury renders its decision.

To borrow a sports analogy, a case can gather momentum like a football team driving down the field into the red zone, and this is often the impetus for resolving the case during trial. One thing is certain about a settlement during trial: it produces finality, and eliminates the risk associated with a jury verdict, where there is only one winner and one loser.

When To NOT Ask Questions At Trial

A few years ago I tried an auto accident case. The defendant driver was 94 years old. By the time of the trial, she was in a nursing home. I never did take her deposition before trial because it was represented to me that she was too ill. Since the accident facts were pretty straightforward (she ran a stop sign), my inability to take her deposition before trial did not concern me.

When the trial started, defense counsel indicated that his client, the elderly driver, would testify at trial. I offered to enter into a stipulation with the lawyer that there was no need to have her testify.

The insurance company refused, apparently thinking that, by putting her on the witness stand, it would create sympathy for the elderly driver.

So the defense attorney put her on the stand. It was a disaster. She was confused, couldn't hear very well, and the questioning didn't serve any real purpose. Despite the disjointed testimony, she did say that she didn't think she saw any cars coming when she entered the intersection.

When it came time for cross examination, the judge asked me if I had any questions.
I stood up and said three words: "No, your Honor." She had done no damage to our case, and the last thing I wanted to do was to ask a single question that appeared to be "beating up" an elderly, confused driver. In my judgment, the jury understood what was going on. And as it turned out, the jury "got it."

Sometimes you need to know when to shut up. In these situations, often the best cross examination is none at all.

Truck Driving Accident Turns Into Punitive Damages Claim

This preventable truck driving accident seemed simple enough. The truck driver ran a red light under heavy fog conditions (fog "so bad you couldn't see in front of you" according to witnesses) and smashed into a motorist at an intersection.

However, after the lawsuit was filed, it was discovered that the driver:

had a previous speeding ticket in New Mexico, a suspension and/or revocation of his license, multiple moving violations, falsified/missing driver logs, little to no experience in the field, and the inability to speak/read/write English fluently.

What's more, during "discovery" (the process by which parties request and exchange written documents/information) it was learned that the driver logs from the crucial time period surrounding the accident were never produced, and that the logs which were produced “show falsified information with regard to times and/or distances.” (Id.).

As a result of these facts, the judge permitted the plaintiff (the injured party) to amend the complaint to allow a jury to consider a claim for punitive damages against the trucking company for its hiring practices and not producing the missing information, among other things.

Lesson: many trucking negligence cases involve more than the "simple facts" that led to a collision. Occasionally, haphazard hiring or safety practices well before a collision are the true root cause of an eventual collision.

And you can be sure of one thing: the unjured victim will NEVER learn about some of these safety shortcuts unless (1) he or she hires a competent attorney with experience in knowing what information to push for; and (2) a lawsuit is filed.
Trucking companies NEVER voluntarily release this potentially damning information without a lawsuit being filed.

Case: Sabo v. Suarez, United States District Court, M.D. Pennsylvania (July 31, 2009).

$105 Million Dollar Verdict In New York City--The Big Apple Likes This One

Yesterday a New York jury returned a $105 million verdict against Exxon for its poisoning of New York City's water supply. The recipients of this whopper verdict were not "personal injury" plaintiffs. Rather, the plaintiff was New York City--the Big Apple itself!

I found it ironic that this verdict came on the heels of a recent report that indicated that New York City spent hundreds of millions in 2009 settling personal injury type lawsuits. City officials were complaining about the extreme costs of tort litigation and ways to curb it, such as putting a legislative cap or limit on lawsuit recovery.

But I'm sure THIS verdict will engender no complaints from NYC officials about our tort system. Welcome to the double standard that is our litigation system. After being in the litigation trenches for over 20 years now, the real world definition of a frivolous lawsuit donned on me a few years ago.

The textbook definition of a frivolous lawsuit in Ohio is:

Conduct that serves merely to harass or maliciously injure another party, or is for another improper purpose;

Conduct that is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law;

Allegations that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Forget how the law defines a "frivolous lawsuit." You want the street definition? Here it is: Any lawsuit other than mine."

It's those "other people" out there that are abusing the system. "They" are trying to get something for nothing from cities like NYC, so the thought goes. But our claim, or in this case, New York City's, is valid and proper. This seems to be the prevailing mentality of people utilizing the legal system. In fairness, there is some truth to this belief, because some people try to take advantage of the system. More importantly, though, the "any lawsuit other than mine is frivolous" mentality exposes how subjective public attitudes about our legal system really are. One person's valid lawsuit is another person's "frivolous lawsuit." That term gets tossed around so loosely and so often that it has lost its true meaning with the public.

It's very similar to all the current cries for "tort reform." What it truly means is that people generally have no objection to cracking down on "those other lawsuits out there," but get really ticked when they discover that tort reform has infected and limited their legitimate lawsuit.

Phone Calls From Chiropractors And Attorneys After An Auto Accident

If you've been injured in an auto accident, you may receive a few phone calls. Here's what you need to know to protect yourself from some shady and perhaps even illegal practices.

The first series of calls may come from chiropractors who got your name by hiring "runners" to retrieve your accident report (which is a public record). The pitch? "We can help you and there's no need to pay the bills as we have an attorney who will work with us and pay your bills out of any settlement." Many will even offer you cab fare to arrange for your initial office visit. From there many will pressure you to sign forms where you give the chiropractor an interest in your injury claim. And, by the way, they will recommend an attorney, who will often be at the chiropractor's office, ready to "sign you up." These are nothing more than "mills" that are not intetested in your best interests. Many insurance companies are wise to these referral mills (because the same chiropractors and attorneys show up repeatedly on these claims) and you are at risk for ruining your claim by agreeing to this shady arrangement.

The next wave of phone calls you may receive is from a small group of attorneys or their office staff. THIS PRACTICE IS ILLEGAL IN OHIO AND VIOLATES OUR ETHICAL RULES. Any attorney engaging in this sleazy practice can be disciplined. These phone calls will take on various forms, according to Columbus personal injury attorney William Mann, who is also an expert in Ohio ethics law:

If attorney phone solicitations are done "right," they are very difficult to prove. The offending lawyers, when caught, say something such as, "Oh, we get dozens of phone calls a day from potential clients and friends and family of potential clients and we try to return all of them. We probably called X because we got a call from a friend or family member asking us to call him." Another scam is to direct contact a potential client and say,"I am investigating this accident and heard you had information about it.* * * Oh, you were injured in this accident, too! Well, since I am already working on this I would be happy to represent you as well." Another popular scam is to direct contact a potential client and say that you will be happy to come to their house and talk about the potential case. When you get there you give them some money, maybe $125 if it is a good case, in cash, for "cab fare," so that they can come to your office during the case if they sign your contract. It goes on and on but these are the scams that I hear about most often.

The overwhelming majority of attorneys do not pull these shenanigans. As usual, it takes only a handful of unscrupulous attorneys to give all of us a black eye.
Lesson: HANG UP THE PHONE! Do your research. Ask friends and family for a list of competent Ohio personal injury attorneys or firms. Hop on the Internet and find a firm that offers potential clients good information or practical advice on what to do after an auto accident. And just say no to "friendly" offers of cab fares and attorneys lurking in the back room of a chiropractor's office.

How NOT To Choose A Malpractice Attorney Over The Internet

Recently I visited a local free "listing" website (similar to yellowpages.com) just to make sure our firm was correctly listed on the site. I noticed a link at the top of the site to a another site (something like "malpractice lawyers for you"). Curious as to who this firm was, I clicked on the link. Up popped a law firm that I had never heard of. The firm listed a 1-800 number and listed no address. I was convinced that this was not an Ohio malpractice firm.

So I dug a little further with a Google search and, sure enough, this malpractice firm, advertising in Canton, was really an Oklahoma law firm. Why would an Oklahoma law firm be soliciting Ohio malpractice cases? Simple--to "sign up" the client and attempt to refer the "client" to a competent Ohio malpractice attorney, for the purpose of gaining a referral fee.

Here's the problem with this arrangement. You as the "client" of this firm are now being passed off to another attorney or firm. No doubt you will have no say or input as to whom you'll be passed off to. This is nothing more than a business arrangement. So be careful when you are searching for an Ohio malpractice attorney and land at a site that does not reveal the location of the firm. The old adage of "cutting out the middleman" might apply here...

Newly Proposed Consumer Financial Protection Agency: Chamber Of Commerce Hypocrisy Exposed Again

The Chamber Of Commerce has (again) recycled a shopworn page from its PR playbook: if you can't think of any substantive criticisms of a new law, just blame "trial lawyers." As a response to our recent economic meltdown, The Obama administration recently proposed creating The Consumer Financial Protection Agency. Here's a summary of some of the Agency's proposed powers:

To begin with, be aware that the agency's powers and oversight would extend far beyond mortgages and real estate -- into all credit cards, debit cards, consumer loans, payday loans, credit reporting agencies, debt collection, stored-value cards and even investment advisory and financial advisory services, to name only part of the list.

It would have the authority to alter long-common practices that nettle consumers, such as mandatory arbitration clauses in the fine print of contracts that automatically send business-consumer disputes to arbitrators rather than to courts. The agency could ban or limit such clauses in specific products if they are shown to tilt against consumers' interests.

The agency would write the user-safety rules for virtually all consumer financial products and would have the legal firepower to levy huge fines -- tens of thousands of dollars a day per violation in some cases -- and prosecute lenders, brokers and others who break the rules.

The agency would be the dominant federal consumer protector in all home real estate settlements. It would regulate "affiliated" title, escrow and financing businesses connected with realty firms and builders. It would oversee equal credit opportunity and fair housing, and would set standards for all mortgage offerings, whether from the biggest national banks or the smallest local brokers. Generally it wouldn't seek outright bans on mortgage products that carry elevated risks -- interest-only loans, for instance -- but would require that lenders restrict such mortgages to well-informed applicants who can document that they understand the risks and can afford the payments.

Look, whether you agree or not with the idea of creating a new government agency to crack down on the mortgage and banking industry or arbitrary credit card surcharges, most people would conclude that SOME increased regulation of the lending industry is needed to prevent the rampant greed (some would say fraud) and overreaching that led to the collapse of the stock market, our retirement plans, and the banking industry.

Who opposes this legislation? The Chamber Of Commerce. Naturally, they really can't argue that the drunken greed of Wall Street and the lending industry had nothing to do with our economic collapse. Who are they targeting while opposing this newly proposed agency? Those evil "trial lawyers." What's the reason? Apparently, under the bill, the Attorneys General of each state have the power to sue and fine the financial services industry for violating any new regulations. And, in an obvious stretch, the StarChamber reasons that any state's Attorney General's office might hire "trial lawyers" to help prosecute these miscreants.

The other main reason it opposes the bill is the byproduct of another dusty and torn page of its playbook: decrying more "big government." But here's where the StarChamber really looks like hypocrites in opposing this bill: The Chamber fully supported the first bailout of Wall Street! Here's what their chief lobbyist said on the eve of the first bailout/stimulus passed in October, 2008:

Extraordinary government intervention is essential to restoring confidence and ensuring credit availability,” the Chamber’s chief lobbyist, Bruce Josten, said in a letter to lawmakers.

“Stabilizing the financial system and preventing a systemic collapse of our capital markets must be the federal government’s top priority,” he added. “Speed is of the essence.”

In addition to its key vote alert, the Chamber on Monday sent out an urgent call to action to its members across the country urging them to lean on their lawmakers to vote for the rescue plan.

“Time is of the essence!” it read. “It is more important now than ever to urge your members of Congress to take immediate action to stop the impending financial crisis.”

On Monday, Josten said in an interview that the enhanced oversight in the bill may not create major burdens for the business community because it will apply only to those that seek help from Treasury.

The message: support HUGE govermnent bailouts of the industries primarily responsible for our wrecked economy, but oppose any legislation as "big government" when it comes to protecting consumers. And, oh yeah, we've got to find a way to blame the trial lawyers for something in this bill...

Erectile Dysfunction Malpractice Verdict--This Would Be Cut Down In Ohio

A Georgia jury returned a $9.25 million verdict against Boston Men's Health Center after its erectile dysfunction treatments caused permanent damage to a 53 year old patient's penis. Apparently the damage was caused by a series of injections of a "secret formula" that was actually a medication (Papaverine) that came under fire by The FDA:

After the initial examination, the clinic's staff diagnosed Howard with erectile dysfunction and premature ejaculation and said they would inject their medication into his penis, a process that would be "painless." Although described by the company as a "secret formula," Orr said that the primary ingredient injected into Howard was a drug called papaverine. While papaverine had once been the primary means of treating erectile dysfunction, it was discarded as a treatment after Viagra was introduced in 1998, Orr said. The Food and Drug Administration has since warned that papaverine should not be used to treat erectile dysfunction, he said.

The jury awarded compensatory damages (money damages designed to compensate for physical damage) of $750,000 and also found Boston Medical liable for $8.5 million in punitive damages( money damages designed to punish a party for outrageous conduct).

If an Ohio jury returned an identical $9.25 million medical malpractice verdict, the minute the jury left the courtroom the judge would have been required to chop the punitive damages verdict from $8.5 million to $1.5 million--a whopping $7 million discount.

Obviously this jury believed that Boston Medical's conduct in repeatedly using a medication no longer recommended by The FDA was more than just negligent conduct. So why do Ohio punitive damage laws give a $7 million discount to a party found liable for egregious conduct? And as a final insult, Ohio juries are not even told that their community decision is subject to an automatic reduction of potentially millions. In fact, the law specifically forbids judges from informing Ohio juries that there are limits or caps on punitive damage verdicts.

Another Ohio "tort reform" law that favors (and rewards) wrongdoers, and hoodwinks juries from being told the truth.

Doctors/Hospitals Leaving Sponges In Patients--Welcome To Tort Reform

Two women. Two surgeries--a tubal ligation and a hysterectomy. The common denominator? Doctors and/or the surgical team negligently left large sponges (commonly referred to as "foreign objects") inside their abdominal cavities. The women lived with the sponges inside of them for nine and eleven years, respectively. Both suffered numerous, chronic medical problems that were misdiagnosed until the foreign objects were finally discovered and removed.

Pretty straightforward medical malpractice case, right? I think we'd all agree that large sponges, towels, forceps, hemostats, clamps, and other hardware left behind in the human body after surgery are classic examples of a preventable medical mistakes. Yet, both cases are before The Texas Supreme Court. Why? Welcome, again, to tort reform.

A few years ago, state legislatures in Texas, Ohio, and other states responded to a multimillion dollar phony "malpractice crisis" PR campaign hatched by the insurance and medical industry and passed numerous laws restricting the ability of malpractice victims to bring lawsuits (I might add parenthetically that doctors were getting unfairly gouged with escalating malpractice premiums by their own insurance companies due to an "insurance crisis" but the insurance lobby blamed their gouging of doctors on "lawsuits" and they won the lobbying war with state legislatures, hence all this lawsuit or "tort" reform).

Many states shortened the statute of limitation for bringing a medical malpractice claims. They also passed what is known as a statute of repose: an absolute deadline for bringing a malpractice claim (usually 10 years). No exceptions, even if you could not discover something like a foreign object left inside of you until after the 10 year deadline.

The Texas Supreme Court is going to decide whether these strict limits bar these womens' claims even though what happened to them was inexcuseable and they had no way of knowing they were carrying eroding surgical sponges in their abdominal cavities (Ohio's "reforms" are just as punitive as Texas,' although Ohio's statute of repose did make an exception for Ohio foreign object malpractice cases).

So what's the response of Texas hospitals that have filed briefs with the Texas Supreme Court? Here's what the hospital lawyer compassionately (note sarcasm here) pointed out:

I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."

(I wonder if this kind soul would feel differently about the issue if it were his wife or daughter who was carrying a large sponge for eleven years, but I digress..)

So there you have the official position of the medical profession in cases of obvious medical malpractice. We screwed up, but an deadline is necessary and we're sorry there will be victims left on the side of the road, but these laws are good for the people of Texas. Or Ohio. Or wherever else tort reform has been passed.

The hue and cry of politicians and a misinformed public is that "We need to get tough on these medical malpractice lawsuits." Well, you're getting your wish. And this is the byproduct of it all. So much for accountability and "personal responsibility."

Ohioans Health Insurance Premuims Rise 84%--Proof That "Tort Reform" Does Not Lower Health Care Costs

In previous posts I have been practically shouting that medical liability or "tort reform" will have NO bearing on the cost of your escalating health insurance premuims. In fact, I asked:

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

Well, we FINALLY have some data out of Ohio. Since 2000, Ohioans health insurance premuims have risen 84%!!!! Guess what? We have had medical "tort reform in this state since 2003, or 6 out of the last 9 years! Included in these "reforms" is a one size fits all "cap" on your recovery for things like being paralyzed, losing a limb, or losing your bowel or bladder function, brain damage--at anywhere from $250,000 to a "generous" $350,000. This cap was sold by insurance companies and the Ohio State Medical Association as being collectively good for all Ohioans ("don't you know that limiting YOUR legal rights is GOOD for you?") as a way to keep spiraling health care costs under control.

Under control? Good for Ohioans? Does an 84% increase in your health insurance premuims sound like it's been good for you? Bottom line: YOUR rights have been put on the chopping block, your recovery as an innocent victim of preventable malpractice is now arbitrarily limited, and your premuims have gone up 84%. You as an Ohioan just got a double whammy. There's another term for this nonsense: bait and switch. Cracking down on "frivolous lawsuits" was the bait or impetus for these reforms, and the switch is that they have had no effect on your premuims.

Yet, we're currently mired in a national debate where insurance groups and medical groups are pushing for these caps...nationwide?????? Oh, by the way, the salaries of insurance company CEO's are not capped by any legislation. The caps only apply to you, the individual.

This madness reminds me of the poker scene in the movie Stripes, where the naive/ dim witted soldier shows fellow soldier Dewey Oxberger (played by John Candy) his poker hand, and Candy tells him: "Yeah, if I were you I'd bet it all." And then Ox wins the hand and takes all money. Very similar to what is going on now, minus the loveable Ox...

Good Samaritan Laws: This Is How Immunity Is Supposed To Work

Talk about a strange way to start the work week. Today I left a business meeting at 9:00 a.m., only to look across the street of a busy road to see...an elderly man lying in his driveway underneath the right front tire of his car. Apparently it rolled down his inclined driveway and ran over him. He was wedged dangerously underneath it and couldn't move. So I called 911 and in the time it took to make the call, 2 motorists had stopped and were trying to move him or the car out of the way.

I ran over to assist, and shortly after that 5 more people had stopped. One man grabbed a jack and was trying to jack up the car so we could move the man out of the way. Finally all 7 of us decided we would try to lift the car while another man pulled him out. It worked. The paramedics arrived and transported him to the hospital.

I've often heard that our "litigious society" deters people from being good samaritans because of a fear of being sued. This is a load of bull. This myth did not stop about 8 people from dropping everything and helping this man. I'm sure nobody even gave a thought to not stopping and helping.

Secondly, Ohio's Good Samaritan law protects those lending assistance from liability unless their conduct is considered "reckless," which is virtually impossible to prove, and for good reason.

Good Samaritan laws serve a useful purpose in society; they are an example of "deserved immunity" for doing the right thing. Compare that to other "immunity" laws that only serve to protect entities like school districts even when they negligently allow convicted child molesters access to elementary school children. This is an example of "undeserved immunity" for doing the wrong thing--dropping the ball--and it is wrong.

So don't ever be afraid to lend assistance in a situation like this. The law will protect you for doing the right thing.

Woman Catches Fire During Surgery And Dies

In a previous post, I wrote about an Ohio woman whose head actually caught fire during a medical procedure (Patient's Head Catches Fire...And Case Gets (Wrongly) Tossed Out Of Court). Unfortunately, this has--unbelieveably--happened again. According to a recent news story, a 65 year old Illinois woman caught fire during surgery at Vanderbilt University Hospital in Tennessee and died.

This is a classic example of medical malpractice-- an unacceptable, preventable, known complication of surgery. The fact that it might be "rare" or a "known complication" is not a defense to the hospital in this case.

But, tragically, events like this illustrate a larger problem: that, despite safety systems and "policies and procedures" in place at the finest hospitals, medical negligence still occurs. Upwards of 100,000 people die each year due to preventable medical mistakes in hospitals. That's 60,000 more people than those who are killed on our nations' highways each year. A comparison of those two figures is mind boggling.

As politicians are debating "tort reform" and medical groups complain about "frivolous lawsuits," there are equally compelling cases of tragedies like this. What we really need is a culture of safety in hospitals that prevents mistakes like this from ever happening. Reducing malpractice means less patient injuries, and less lawsuits.

Currently, we are mired in a debate where medical groups and The Chamber Of Commerce are pushing for limits or caps on what malpractice victims can recover EVEN IN LEGITIMATE CASES. Punishing the victims and limiting the wrongdoers' insurance companies' liability rings hollow when you hear about needless tragedies like this one.

Beware Of The Latest Ohio Auto Accident Personal Injury Scam

Some Ohio attorneys are reporting that auto accident victims are receiving phone calls shortly after an accident from "police officers," who are asking victims detailed questions about their injuries. Apparently, these "police officers" are providing no identification as to name, badge number, police force, and after the information is provided, the "officer" hangs up.

Here's my take on this scam. Either one of two things are going on here. The first possibility is that the insurance company for the at fault driver is calling and trying to obtain information about your injuries, particularly if you have declined to speak to the adjuster and give a "recorded statement" to him or her.

ANother possibility is that the call was initiated by an unscrupulous medical provider who is gathering information in order to solicit business and eventually convince you to come in and receive medical care. Although this is uncommon, it does happen as I've written about in my book, "Your Ohio Accident" (The book is free and is available on our blog home page by clicking on the cover). My opinion: never, ever take up an offer from any medical providers or attorneys who call after an accident offering their services. These are unscrupulous people running "settlement mills" in order to make a cheap buck off of your injury claim, and they're not looking out for your best intersts. What's more, many of these providers and attorneys are well known to insurance companies because---suprise--the same providers and attorneys show up over and over again as insurance companies investigate these claims.

Here's how to quickly end this nonsense. Ask immediately for the "officer's" department, ID or badge number, and his or her supervisor's name. If an attorney or his or her office staff calls you, ask for the name of the firm/attorney and for the attorney's Supreme Court Identification Number (we all have one as we have to be registered with the Ohio Supreme Court). This will quickly end the phone call, since our Rules Of Ethics specifically prohibit telephone solicitations.

And as soon as you hang up the phone, find yourself a competent attorney of firm to represent you. And I cover that topic in the book as well.

Tax Relief Firm Requires Customers To Give Up Right To Sue And Arbitrate Disputes...IN CALIFORNIA!

We've all seen those ads for tax relief firms which promise to take on the IRS to eliminate or reduce your tax lien. CONSUMER WARNING: Be careful what you sign when you hire one of those firms. Recently, an Ohio customer hired Tax Inc., a nationwide tax relief firm, to handle an IRS matter. The customer signed an agreement which provided at the end:

Finally, any dispute in connection with any service performed by Tax, Inc. (a "Dispute") will be resolved by binding arbitration, pursuant to the rules of the American Arbitration Association ("AAA"), as the sole and exclusive manner in which such dispute may be resolved. I hereby waive my right to a trial by jury and consent to the County of Los Angeles, State of California as the sole and exclusive jurisdiction and venue for the arbitration. I hereby irrevocably waive, to the fullest extent permitted by law, any objection I may have now or hereafter have to such venue as being on inconvenient forum. Each party will bear its own attorneys' fees in connection with any proceedings regarding a Dispute. Any and all Disputes shall be governed by, and construed and enforced in accordance with, the laws of the State of California.

Apparently dissatisfied with Tax Inc.'s services, the customer sued for breach of contract in Ohio. Based upon this clause, Tax Inc is now claiming that the customer has no right to sue in Ohio, and the case must be arbitrated in Los Angeles, California!!!

I have no idea about the merits of this customer's complaints against Tax Inc. But if this one sided clause is upheld by an Ohio court, it means that dissatisfied customers are stuck with traveling to California for an "arbitration" of their complaints. How inconvenient is that? And that's the whole point of a clause like this: to make it so impractical and burdensome that many disgruntled customers will throw up their hands and cave in. It's yet another example of the unfairness of one sided, involuntary arbitration clauses, which are fully supported by the U.S. Chamber Of Commerce as "good for business." Not so good for the consumer. And as to the "fairness" of this clause, did you notice that it was only the CUSTOMER who waived the right to sue in Ohio or a right to a jury trial? The tax service waived nothing!

So if you're considering hiring one of these services, do the following:
1. Ask to see a sample contract BEFORE you sign anything;
2. If the agreement/contract contains an arbitration clause or other waivers of your rights, ask if these clauses are mandatory, meaning "take it or leave it;"
3. If waiving your rights is a "take it or leave it" proposition, leave it! Walk away from the deal, tell them why, and consider hiring a local service that won't send a potential dispute thousands of miles away.
4. If the service says "Just sign it as is and we'll take it out" or "don't worry, we won't honor that portion of the agreement," NEVER EVER agree to this.

Tort Reform Won't Lower Health Care Costs...And... It's Socialism!

A recent article in the Orlando Sentinal summed up this whole health care debate quite succinctly: that the people screaming for medical liability reform are really screaming to have their own rights limited if they are maimed by a preventable medical mistake. And they really don't even realize it.

The reason is quite simple: people think that these "reforms" are simply cracking down on those "frivolous lawsuits" they hear about. What they don't realize is that what is being proposed is an arbitrary, one size fits all "cap" or limit on what malpractice victims can recover even when it's proven that the physician or hospital was negligent!!! This, of course, has nothing to do with getting tough on "frivolous lawsuits."

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

So where is the data? Why is nobody shouting at town hall meetings for this proof? (Could it be that some of these "concerned citizens" were sent by industry groups with bullet points about "death panels" and "socialism," or am I just a tad cynical here???)

And while we're on the topic of "socialism," those opposing health care reform have recently begun to argue that the federal govenmnent has no constitutional right to even pass federal health care reforms; rather this whole issue should be left to the states, they chirp. Yet, out of the other corner of their mouths, these same interest groups are DEMANDING intervention of the federal government in passing federal "tort reform" with the principal argument that your individual rights to hold wrongdoers accountable should be limited "for the good of the whole" so that insurance companies can save money and (certainly) pass all those savings on to all of us. Gee, this sounds like...socialism? Government stay out of health care reform, yet pass federal legislation that limits the rights of all Americans? Perhaps the medical interest groups lobbying for these mixed messages should look up the definition of schizophrenia: "a state characterized by the coexistence of contradictory or incompatible elements."

Closer to home, in 2003, Ohio passed lawsuit caps/limits on what malpractice victims can recover. So, my fellow Ohioans, six years later, are your health care premuims going down, or are they continuing to rise every year? I think we all know the answer to this. And who's laughing all the way to the bank in states where "reforms" were passed? The insurance companies. They're spending roughly a million a day to lobby for laws that will take away a lot of your rights even in legitimate cases of preventable medical mistakes. And many of you are buying it.

So shout away at your town hall meetings. Just don't shout at me when you call and tell me after all these "reforms" are passed: "I'm not one of those sue happy people but I was legitimately harmed and my life will never be the same and it's not fair that my rights have to suffer because of these laws." My response will be: "You're right, but it's too late. Money, lobbying, misinformation, and public ignorance won---again."

You never know how sweet the water is until the well runs dry...

New Ohio Supreme Court Decision May Mean Chaos For Nurses And Other Health Care Professionals

Nurses, physical therapists, nurses aides and anyone else who works in a hospital or nursing home setting: look out. Courtesy of two recent Ohio Supreme Court decisions, the liklihood of you being sued and dragged into a lawsuit just went up big time.

Here's the deal. Before these two recent decisions, if nurses or other health care professionals made a medical mistake in the scope of their employment and a patient was injured, the nurse's employer was liable for that mistake. Example: a nurse administers a wrong medication to a patient, or doesn't follow specific orders for a patient's plan of care, and the patient is injured. There was no need, and no legal requirement, to sue that nurse individually. Rather, the employer (typically the hospital or the nursing home) would be sued and liable for any damages if negligence was proven. End of story.

However, the Ohio Supreme Court has recently ruled that in order to hold the employer liable for the employee's negligent mistake, it is now necessary to also sue the employee, in certain situations. This decision has thrown almost 200 years of established legal precedent out the window. Here's the result of these decisions: MANY HOSPITALS AND NURSING HOMES ARE NOW ARGUING THAT UNLESS THE INJURED PLAINTIFF NOW SUES EVERY NURSE POTENTIALLY INVOLVED IN A NEGLIGENT MEDICAL MISTAKE, THERE IS NO CASE AGAINST THE HOSPITAL/NURSING HOME.

This reasoning potentially invites chaos for two reasons. First, in over twenty years of handling medical negligence cases, I have NEVER sued an individual nurse even if that nurse made a negligent mistake. There was no need to scare nurses or techicians by naming them personally in a lawsuit, having them worry about whatever effect it may have on their credit rating, and all the other emotional baggage that came with personally naming them in a lawsuit. And I can speak for my colleagues that NOT suing individual health care providers was standard practice. Now, we personal injury attorneys may have to comb through and decipher medical records to identify what staff may have had a role in a patient injury, and include those individuals in a lawsuit.

The second fallout of these decisions is that hospitals are now advocating that their employees must be sued. This has already happened and I have proof that a local hospital in Canton is taking this position. How twisted is it that, consequently, we medical malpractice attorneys who bring lawsuits are advocating suing fewer people, and hospitals and nursing homes are now demanding that their employees be sued? This is nonsense--nonsense on stilts!

So, nurses and other health care professionals, please take note: I never wanted to, and still don't want, to sue you! But now, I may have no choice to do so to protect my clients' rights because YOUR hospital or nursing home will now claim that, unless I don't sue you, the lawsuit must be dismissed.

No doubt if some poor nurses find themselves on the receiving end of a lawsuit, they'll be angry. Their immediate reaction will be to be angry with us "trial lawyers.". While I understand this, your anger is misplaced. If you're served with any lawsuit papers, you might want to ask your employer: why are you taking a legal position that demands that I be sued?

It remains to be seen whether courts will apply these new decisions to hospitals and nursing homes. But remember one thing: we are on your side on this issue. We DO NOT want to sue you.

Attorneys' Approval Rating Is No Suprise

Well, the results are in. The legal profession has a 25% approval rating, according to a recent Gallup poll. Although how we're viewed by the public is never more than a passing curiousity to me, the results are hardly suprising.

Some of the reasons for our low ratings are built into the system. For example, many don't understand how or why criminal defense lawyers defend those charged with a crime (despite our Constitution, which mandates it). TV shows have lampooned us for years. Many politicians are lawyers. I get all that.

But in my field of work, personal injury litigation, I think some of the contributing factors are much clearer than we would like to admit. Some of my colleagues justify our low approval ratings by pointing out that the insurance industry, corporate America, medical groups, The Chamber of Commerce, and artificial turf "citizens groups" (which are funded by most or all of the above) have been engaged in an orchestrated propaganda campaign, spanning over 40 years now, to discredit trial lawyers, lawsuits, juries--you name it--as I've written about here in a past post:

The biggest cheerleader for all this legal reform? None other than AIG Chairman and CEO ($29 million per year) Maurice Greenberg. Below is an excerpt from an excellent article in The Washington Monthly chronicling the orchestrated movement by big business and insurance companies to restrict personal injury lawsuits:


In the mid-1980s, with insurance companies hitting a slump, the insurance industry's "tort reform" movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue. The movement pursued strict caps on damage awards, tougher standards for proving liability, and caps on plaintiffs' attorney fees. The industry's crusade was taken up by small government conservatives, who believed that tort reform paralleled their own efforts to fill the federal bench with pro-business jurists and roll back government regulations. They were also upset by changes in the 1960s and 1970s that broadened legal protections for women and minorities, such as the 1964 Civil Rights Act, and the expansion of product liability doctrines that made it easier for injured consumers to force companies to compensate them for faulty products. Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced--or the injured victims they represented.

Advertising was a key component of those efforts. In 1986, Newsweek ran a series of ads sponsored by the insurance industry under the heading, "We all pay the price." The ads warned that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks--though few of these assertions turned out to be true. That same year, 1,600 tort reform measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards before adjourning.

Tort reformers still weren't satisfied but were hamstrung by the fact that most Americans didn't see lawsuits as a huge problem. After all, most people never have any contact with the legal system unless they're getting divorced. So, a group of corporate leaders, including AIG's Greenberg, set about to change that by pumping money into right-wing think tanks to prepare a body of "evidence" proving that not only was there a crisis in the courthouse but also that "we all pay the price" as a result.

Sound familiar? This machine has been running since the 1980's! And my colleagues are right-- to a degree. But what many of them refuse to mention, or fail to acknowledge, is an undeniable truth: we have, during this same time, continually shot our collective selves in both feet, arms, legs, and many vital organs as well.

Involved in a minor fender bender that was not your fault? Or did you experience a personal tragedy of losing a loved one in an automobile collision? Well, no matter what happened, you can expect 10-20 "solicitation letters" to arrive at your mailbox within a matter of days.

Watching the Indians game (although I wonder who if anyone is masochistic enough to suffer through watching them this year)? Expect to be bombarded with commercials from dozens of personal injury firms from both Ohio and who knows where else, expressing concern over your plight, and promises to deliver justice and "make them pay."

Want to order a pizza during the game? Don't expect to find your favorite shop on the back cover of the phone book. When I have to travel for a case, I always find the hotel's courtesy local phone book. No matter where I am in the U.S., there is always a law firm on the back cover. I wonder in passing if Congress passed some obscure federal law mandating law firm ads on the back covers of all phone books.

The list goes on and on. Billboards, buses, neat trucks with side panel, rotating messages, you name it. All we need to do is look in the collective mirror and we find the answer: the enemy is us. What we have done to ourselves is just as bad as what the other side has done to us. Are we really suprised that our approval rating is what it is?

Look, this is America. All of this stuff is legal under our First Amendment. The firms which advertise in this manner have every right to choose to do so. And not all of the TV ads are tasteless. But as a firm that does not engage in the practice of mass advertising, and views the practice of sending solicitation letters as downright offensive, we non-participators every right to point out that the cumulative effect of it all has done way more harm than good.

And quite frankly, I'm tired of being tarred with the same brush when I explain what I do for a living, or pick a jury and have to listen to all the complaints about offensive letters or cheesy ads.

It seems to me that have we resigned ourselves as a profession to the notion that "we'll never be popular anyway, so let's just have a race to the bottom" with all the ads and other tasteless marketing. Hmmm. Reminds me of what my Dad told me a long time ago: "If you want to get out of a hole, stop digging!"

Just turn on the TV and watch the dirt fly..........

Jury Verdicts In Product Liability Cases--And Why You Won't Hear Much About This Verdict In The Media

A jury in Texas recently decided that Yamaha was not liable for the death of a 13 year old child who died in a rollover accident while driving a "Rhino" all terrain vehicle. Yamaha stopped selling the Rhino in April, 2009. Fifty nine people have died while operating this vehicle (which looks like a souped up golf cart)and two thirds of accidents involving it have involved rollovers.

Nevertheless, this jury weighed the evidence and found that Yamaha was not negligent. It is impossible to determine what exactly the jury based its decision on, as we don't know what evidence the jury heard, what evidence was admitted or excluded from trial, etc. But the larger point is that "tort reformers" and The Chamber of Commerce are constantly arguing that juries can't be trusted and need to be "reigned in" since they are prone to sympathy for the victims' family and frequently return enormous verdicts against big corporations due to a "litigation lottery" mentality.

We personal injury attorneys who represent families in cases like this know that this argument is a an exaggeration at best and a lie at worst. The purpose of this disengenuous PR campaign is to convince legislators to pass arbitrary limits on lawsuit recoveries in order to take away the power of juries to decide these cases. Their modus operandi is this: wait for a jury anywhere to return a large verdict against a corporation, and then use the verdict as the poster child for what's wrong with our civil justice system, and why we need "tort reform."

I can't think of a more sympathetic situation than a 13 year old child who died while operating a recreational vehicle for fun. Yet, apparently this jury was not swayed by this.

You won't hear Corporate America or The Chamber squawking about this verdict because it disproves their "juries are too stupid to be trusted to decide these cases" theory. But I can guarantee you that if this jury returned a verdict for money damages in favor of the family, they'd be dusting off the old broken record about "runaway juries" and playing it again in the media.

Caps On Damages In Lawsuits--Be Careful What You Wish For...

A few years back, I represented an absolutely wonderful man who was catastrophically injured in a trucking collision. After years of litigation, we were able to settle his claim to make sure all of his future medical needs were taken care of.

I still keep in touch with him and we spoke the other day. He informed me that one of his recent medications cost $4,000 for a two week prescription. That's not a typo. He told me: "I don't know what we would have done without the settlement."

At the time of his settlement, there were no "caps" or limits on what he could recover in his lawsuit. As of 2005 in Ohio, now there ARE caps on what innocent victims can recover in any personal injury lawsuit, whether it is an injury due to malpractice, a drunk driver, or a truck driver who never should have been behind the wheel. If these caps were in place, I doubt he would have been able to afford this medication.

Recently, medical groups and insurance companies have been pushing a national cap on damages in medical lawsuits as part of health care "reform." What many people don't realize is that these proposed caps apply in cases where the injured victim is 100% innocent and when the medical provider committed indusputable malpractice. No exceptions. Essentially, these groups are saying: if you're maimed or in a wheelchair, your individual rights must be sacrificed for the good of the whole.

Gee, this sounds like....hmmm...."socialism?" You bet. The lesson: be careful what you wish for. You may just get it. And when you do, you'll be saying what a lot of Ohioans are asking me now: "why are we as innocent victims who did nothing wrong having our recovery arbitrarily capped--the only party benefitting from this are the insurance companies!"

Bingo.

Focusing On The Positive In This World

Permit an off topic diversion from legal "things." It's easy to fall into a rut. Pressures abound: work and trying to do your best for clients or your employer, raising a family, trying to run a business in one of the worst economic times ever. Nobody is immune to this. And we are at a time in this country when our civility towards one another is at an all time low. We are shouting more and more at each other and nobody seems to listen any more. Negativity, fear, and paranoia seem to be only a remote control or mouse click away.

And then you are hit with a thunderbolt of hope and decency that cleanses all the negativity away like a long, hot shower. My wife introduced me to a fellow photographer's blog that she follows. His name is Zach Arias. He recently posted an incredible video he took of a door to door salesman named Derrick. The video is unbelievely inspirational, and I encourage you to watch it (it gets really interesting after Derrick's standard sales "pitch"):



We can all use a healthy dose of perspective and inspiration as we face the challenges of life. Derrick's message does that, and let's us know that being positive in the face of adversity, no matter where you draw your inspiration from, is the only true antibiotic for what ails us.

One other thing: Zack also set up a virtual product account for Derrick to allow people to assist him. You can visit Zach's website to make a donation. It's people like Zach and Derrick like this that re-affirm my faith in the beauty of the human spirit, and it can't come at a more opportune time in our country. There is beauty and inspiration all around us. Sometimes we find it when we least expect it, by reading an Internet blog post based upon a ramdom meeting of strangers, and a video camera.

A special thanks to my wife for turning me on to this. She inspires me in so many ways...

Ohio Pharmacist Going To Jail Over Botched Prescription

Recently, Ohio pharmacist Eric Cropp was sentenced to jail over the gross mishandling of a chemotherapy prescription that tragically took the life of a two year old child. You can read about it here.

Apparently a pharmacy technician mislabeled saline solution as a chemotherapy solution and the pharmacist had ample opportunity to catch the error and didn't. He was charged with involuntary manslaughter and pled no contest. The tragic death of Emily Jerry led to the passage of Emily's law, which now mandates strict qualifications for pharmacy techs.

But I must admit to having reservations and mixed feelings about criminalizing the pharmacist's conduct in this case. Was he grossly negligent? If this article is accurate, yes. Should a malpractice lawsuit be brought against him? A no brainer. Was his conduct egregious enough to warrant imposing punitive damages against him personally in a civil malpractice lawsuit (damages specifically designed to punish wrongdoers for conduct that is more than just negligent)? Again, yes. Should he lose his license? Yes, in this case--in fact, he did.

In fairness, there is a difference between incompetently handling a prescription and transforming an act of gross malpractice/negligence into a criminal involuntary manslaughter charge. Criminally prosecuting and sentencing a medical professional is essentially unheard of as a result of a preventable medical mistake--in fact, as far as I know, this has never happened before in Ohio. And doctors hardly EVER lose their license when they commit malpractice, as I have written about here. Ohio malpractice laws allow for suing him and even imposing punitive damages against him, and are considered the only remedy for a deceased person's family.

I'm not sure what purpose charging him criminally and sentencing him to prison will serve at this point. This is a tough call for me since I have represented many families harmed by medical and pharmaceutical errors. Their lives are never the same. And we personal injurty attorneys are often portrayed (wrongly) as unfairly targeting and having no sympathy for the medical profession.

Criminally charging a medical professional in a case like this is a rare situation and is unlikely to ever occur again. Unfortunately, preventable medical errors like this one are NOT rare. As The North Carolina Board Of Pharmacy recently noted:

Communication failures between technicians
and pharmacists, IV compounder-related failures, inadequate
documentation of the exact products and amounts of additives,
and other system issues have contributed to numerous
fatal errors.

My gut reaction, however, is that it just seems to be too harsh of a penalty in this case. Perhaps I would feel differently if it were my child. It's a tragedy any way you look at it. My sympathy goes out to all involved. Hopefully some good will come of it, and the recent law changes will make us all safer. But at a minimum, it proves once again that our medical system is still frequently riddled with preventable medical mistakes. Remember that when you hear all the rhetoric about our "runaway litigation climate" and the clarion calls for "medical malpractice reform" in the current health care "debate" (and I use that term loosely after seeing how embarrasingly ugly and rude and uncivil we as a nation have become recently).

More Proof Of Doctor/Chiropractor/Attorney Treatment Mills-- Auto Accident Victims Beware

Recently I wrote here about how to identify and stay away from medical providers who are running "treatment mills" if you are an auto accident victim looking for a medical provider or an attorney. A recent online article goes into great detail as to how these "operations" worked in certain states like New Jersey. The author, Susie Madrak, was a former fraud investigator for an insurance company.

It's just more proof that you as a consumer need to be educated as to how to avoid this mess, and choose a medical provider and an attorney who will look out for your best interests, and not theirs'.

(More information about this issue is available in our FREE book, "Your Ohio Accident...And How To Level The PLaying Field." Just click on the cover of the book and we'll send you a copy).

I Was Injured In An Auto Accident--What Is My Case Worth?

Last week I met with a potential client who was injured in a collision. She had met previously with another attorney, who told her at the initial meeting what her case was worth. The client was rather taken aback by this (which is why she came to see me), and I don't blame her. After over twenty years of handling Ohio auto and trucking personal injury cases, I'm still amazed when I hear from clients that other attorneys have told them what their case is worth over the phone or at the first meeting. This is wrong, premature, and is often the byproduct of ignorance or arrogance.

Every person's case is like a fingerprint--each one is unique. Evaluating a case involves reviewing a litany of information such as the accident report, the client's medical treatment records, the client's past medical history, his or her recovery or prognosis, and all other relevant information. This process takes time, and often can't be completed until the client is finished with medical treatment.

What's more, any injury claim will often take on a life of its own. Like life in general, some cases will get better over time and some get worse. Here's a perfect example. Sometimes clients will be involved a horrible collision, like a rollover. Some will initially be stiff and sore and bruised all over. Many suffer neck or other orthopaedic complaints. Some of those orthopaedic problems require extensive follow up treatment. On the other hand, some clients, because of good genes, good pre-accident health, or sheer luck, will make remarkable recoveries with very little treatment.

You never know how or when you'll recover until after the passage of some time. That's why it's presumptuous for personal injury attorneys to presume in all knowing fashion at the initial meeting that they know what your claim is worth because they've "seen this before." Your case value should be based upon the unique facts of your case, and not what your neighbor or Uncle Willie settled his case for three years ago.

At the right time, you should be told a monetary range of what your case is worth. The initial client meeting is the wrong time. But hey, if you want to choose an attorney who can tell you in drive thru fashion what your case is worth, that's your choice. Just remember that with any drive thru, sometimes they mess up your order...

I FELL /SLIPPED IN A STORE. IS THE STORE LIABLE FOR MY MEDICAL BILLS, LOST WAGES, OR PAIN AND SUFFERING?

This is a frequently asked question. First, let’s knock down a myth that some people believe when it comes to injuries that occur on someone’s premises, whether it’s a home or a business.

General Rule No 1: You as a landowner or business owner are NOT automatically liable if someone slips or trips or falls on your property. You are only liable if you as a homeowner, or your employees if you own a business, were NEGLIGENT.

This same rule holds true if YOU were injured or fell in a store; the store is not liable unless you prove it was negligent. However, courtesy of two recent Ohio Supreme Court cases, proving a store’s negligence just got a lot harder. First, you now have to show that the hazard that caused you to fall was not “open and obvious” or your case will get thrown out of court.

EXAMPLE: You are pushing a shopping cart in a grocery store. A stock clerk negligently spills some detergent or leaves a pallet on the floor at the end of an isle. Problem: you can’t see it because it’s lying in an area where you are turning the corner as you push your cart. You fall or trip and break your hip. You tell the manager: “I had no idea it was there because I was pushing my cart and coming around the corner.”

Under the “open and obvious” rule, the store can say, “well, it was open and obvious if you had just looked where you were going” and the chances are great that your case will get thrown out of court. Never mind the fact that the detergent or pallet or whatever was on the floor HAD NO BUSINESS BEING THERE AND THE STORE KNEW ABOUT IT AND NEGLIGENTLY CREATED THE HAZARD FOR UNSUSPECTING SHOPPERS! In fact, the store employees could actually ignore the store manager's order to clean the spill immediately and it wouldn't matter, as long as the condition is "open and obvious."

It gets worse. Under a June, 2009 Ohio Supreme Court case, a business owner can even violate the provisions of The Ohio Basic Building Code (which regulates things like stair heighth, handrails, and other safety features in buildings) and still use the open and obvious defense to avoid responsibility for its own negligence!

In that case, a frail 78 year old man who carried an oxygen tank called ahead for a motel room and specifically reserved a handicapped room so he wouldn’t have to climb any stairs. When he and his wife arrived, the room was already rented, so they were given a room requiring the man to climb two steps. Here was the problem: the steps were in violation of the building code because they were almost 2.5 inches higher than what was legally allowed. You can guess what happened: he fell, broke his hip, and died three months later from all kinds of complications.

The injured man went out of his way to avoid having to negotiate any steps, was forced to negotiate two steps that were too high, in admitted violation of the Ohio Building Code, and STILL got his case tossed out of court. Why? The condition of the steps were “open and obvious.” This ruling just made it a lot harder to pursue lawsuits where someone is injured on another's business property.

These rulings are GREAT for the insurance companies who insure stores, motels, malls, and other businesses. Now, no matter what condition a store is in, and no matter how preventable these falls are, department stores and big retailers can now leave huge messes, objects, and clutter wherever they want. And they can potentially deny responsibility of preventable, legitimate injuries as long as their mess was “open and obvious.” And you as the injured consumer are left holding the bag.