Wednesday, February 24, 2010

Toyota Recall, Sudden Acceleration Deaths, Products Liability Lawsuits And Tort Reform--Who Benefits?

The answer: Toyota. Let's assume for the sake of argument that the Toyota vehicles' sudden acceleration problems are due to a "defective product" (a defect caused by improper design/testing, manufacture, or failing to adequately warn consumers of defects, problems etc). How would Ohio law treat these defects, Toyota's liability, and the families of the victims (at least 34 deaths have been attributed to sudden acceleration)?

Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.

Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?

Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.

Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.

Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.

What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.

Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.

So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.

Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.

And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?

The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.

Tuesday, February 23, 2010

"Ice Storm" Frivolous Lawsuit Would Be Tossed Out In Ohio

A Massachusetts man sued the city of Windham, New Hampshire and the state for a 2008 collision at an intersection where the traffic signals were disabled. One large problem, however: electrical power at the intersection, and many others, was gone because of a huge ice storm that affected 1.7 million local residents.

I'm not sure what New Hampshire law says but in Ohio:

1. A non-functional intersection turns it into a 4 way stop where every driver needs to use reasonable care when proceeding through the intersection; and

2. Cities and The State Of Ohio are legally immune from liability even if they were negligent in fixing the signal, were too slow to fix it, or did not adequately warn motorists. There are limited exceptions to this rule but they don't appear to apply to these facts.

Sorry but I wouldn't touch this case with a ten foot pole if it came to me in Ohio. A major ice storm knocks out power to millions, two cars crash at a downed intersection and one of the passengers is blaming the state for the crash? Why didn't he sue his friend for not proceeding through the intersection--IN AN ICE STORM--carefully?

In fact, if this case were filed in Ohio law there's a good chance a judge might find it frivolous. In Ohio, a frivolous lawsuit or claim is one that (1)serves merely to harass or maliciously injure another party, or is for another improper purpose; (2)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; or (3) has no evidentiary support or is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Additionally, attorneys who file them can be forced to pay sanctions such as attorneys' fees. Surprisingly, many people demand laws against "frivolous lawsuits" unaware that states like Ohio have had laws outlawing them since the 1980's.

Thursday, February 11, 2010

Is Your Long Term Acute Care Hospital Safe?

Yesterday The New York Times ran a lengthy expose` on patient safety concerns at long term acute care hospitals (LTAC's), specifically Select Medical Corporation, a for profit, publically traded company that operates 89 long term hospitals across the U.S. Many of these hospitals are known as "hospitals within a hospital," as typically entities like Select lease a floor of an existing hospital and set up their own separate hospital for patients' long term care needs.

The article is a must read for anybody considering a transfer of their loved ones to an LTAC facility. Interestingly, this article comes on the heels of a case we recently litigated against a long term acute care hospital arising out of the death of a ventilator dependent patient. As a result of that case, we prepared an article for consumers,reproduced in full below, entitled: LONG TERM ACUTE CARE HOPSITALS AND ARTIFICIAL AIRWAYS: WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW. Hopefully both articles will provide real guidance to families considering these facilities beyond their fancy brochures and websites touting their excellence...



Long term acute care facilities ( LTAC’s) in many ways are like hospitals: they care for critically ill patients who sustain strokes, brain injuries, and other serious conditions.

Frequently these patients are transferred to LTAC’s with artificial airways in place, such as an endotracheal (ETT) or, more commonly, a tracheostomy tubes. Because these patients are ventilator dependent, artificial airways are their “lifeline” for supplying oxygen to their vital organs. If artificial airways are dislodged or compromised for any reason, brain damage or death can occur within a matter of minutes.

LTAC’s must have clear guidelines in place as to how staff will respond to airway emergencies. However, in our experience, some LTAC’s give little thought to preventing airways from being dislodged, while others are unprepared to provide safe emergency airway management when airways become dislodged.


Airways can become dislodged during patient turning or repositioning when staff causes excessive tension on the airway tube or the ventilator tubing (which connects the airway tube to the ventilator). Surprisingly, some LTAC’s allow nurses’ aides to turn artificial airway patients without supervision of a nurse or respiratory therapist (RT). Whether the LTAC has a written policy mandating the presence of a nurse or an RT during patient turns is a crucially important question for patients’ families to ask LTAC staff. If there is no such policy, it is a red flag that the LTAC has not adopted a “prevention first” mentality to patient airway safety.

Equally important is whether the LTAC has policies to alert staff that a patient’s tracheostomy is “fresh” or new, commonly defined as one that is 7-10 days old. If a fresh trach becomes dislodged, it is a medical emergency requiring immediate action to restore an open airway and provide life sustaining oxygen. Some LTAC’s have written policies requiring “fresh trach” signage to be placed above the patient’s bed as an additional warning to staff. Lack of mandatory signage is another red flag that the LTAC does not fully appreciate the hazards associated with these vulnerable airways.


“Airway management” is the process of ensuring that a patient has a patent or open airway for life sustaining oxygen. When an airway becomes dislodged, staff must act immediately to restore the airway. Obvious questions to ask staff are: Who are the first responders to an airway emergency? Does the LTAC have an in house physician to respond to an emergency at all times, or is troubleshooting this emergency delegated to in house RT’s?

If RT’s are the designated first responders, are they trained and competent to intubate patients – one of the most fundamental aspects of airway management? Intubation is the process of inserting a breathing tube into a patient’s mouth or nose and into their upper airway in order to provide oxygen to the lungs. Surprisingly, some LTAC’s do not train their RT’s to intubate, even when there is no physician-responder available on site.

An LTAC’s emergency response protocols are even more critical when a fresh trach becomes dislodged. The surgical hole or “stoma” in the trachea created by the original tracheostomy surgery will close rapidly if the tube is dislodged, because the hole has not matured. A serious risk of re-inserting any trach tube is misplacing it into the tissues surrounding the patient’s trachea, known as “false passage” placement. This results in forcing oxygen into the patient’s face, neck, and chest instead of the lungs, and is a serious and life threatening complication.

Because of this risk, some facilities have clear policies prohibiting RT’s from attempting to place any trach tube into a fresh trachea hole. Instead, many facilities require that RT’s call a “Code Blue” and provide oxygen through a bedside oxygen “AMBU” bag rather than attempt a risky emergency trach tube change.

Amazingly, some LTAC’s permit RT’s to attempt the dangerous practice of inserting a new trach tube into a fresh tracheostomy hole.

To summarize, any LTAC accepting patients with artificial airways should be prepared to answer the following questions:

1. Do you allow nurses aides to turn patients with airways with no nurse or RT supervision?

2. Do you require special signage above patients’ beds warning staff of a fresh or new trach?

3. Do you have a physician on hand at all times to respond to airway emergencies?

4. Are your RT’s competent to intubate patients who’ve lost their airway for whatever reason?

5. Do you prohibit your RT’s from re-inserting or replacing a dislodged fresh trach?

The more “No” answers you receive, the more likely the LTAC has not implemented practices that promote a culture of safety when it comes to protecting patients' artificial airways. Given that the maximum foreseeable harm of a dislodged airway is brain damage or death, there is no excuse for an LTAC’s systemic lack of preparedness when it comes to patient airway safety. Their lack of foresight should not expose your loved one to increased risks while recuperating from a serious illness.

Saturday, February 6, 2010

The Final Argument You'll Never Give

Medical malpractice cases are like a preparing for a marathon. Most take over a a year to get ready for trial. A recent one our office handled involved almost twenty depositions scattered all over the country. As the trial approaches, it becomes organized chaos. Cross and direct examinations, medical illustrations, lining up witmesses and subpoenas, exhibits, and the opening statement all must be prepared. What's more, there's always a flurry of last minute motions that you have to respond to. All this occurs at the same time when there are occasional last minute attempts to settle the case.

The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.

But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.

You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.

And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.

This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.

I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.

Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.

These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.

Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."

But I can still share some of it here. Consider it my gift to the Nutroll lady.

Wednesday, February 3, 2010

Hospital Whistleblower Lawsuit: Where The Drumbeat of "Defensive Medicine" Meets The Cowbell Of Fraud...

Those arguing for medical lawsuit "reforms" repeat over and over that doctors and hospitals are forced to practice "defensive medicine" because of a fear of lawsuits, which drives up the cost of healthcare, etc. What is often ignored by the medical and insurance groups pushing this argument is that some doctors and hospitals stand to gain financially from the very tests and procedures they love to label as "defensive medicine."

Recently, a Cincinnati hopsital agreed to settle a whistleblower lawsuit brought by a cardiologist and the federal government alleging a fraudulent "kickback scheme" where cardiologists' access to the hospital for heart procedures was allegedly based upon the revenue they generated for the hospital. And while Christ Hospital denied any sort of wrongdoing, it agreed to a whopping $100 million settlement with the government in order to reimburse Medicare.

You can draw your own conclusions from the fact of the settlement and, more importantly, the amount of it. These allegations, if true, show how a hospital's business model impacts patient care (more tests being run on patients), the hospital's bottom line, AND the cost of healthcare. After all, if hospitals are billing Medicare for more tests as part of some suspect billing or kickback scheme, what is that doing to our Medicare funds? (Depleting them is the right answer...).

Yet, this $100 million head turner of a settlement at one hospital will not get much attention from the politicos. They're too busy dragging out and continuing to beat the "trial lawyers are causing doctors and hospitals to practice defensive medicine" drum at every opportunity.

This piece of news is more like a small cowbell instead of a drum. And as we all know from the now famous Will Farrell Saturday Night Live skit, we all need "More Cowbell."