Tuesday, August 31, 2010

Turning Left In Front Of A Motorcyclist--The Most Common Cause Of Morotcycle-Car Collisions

In over 20 years of handling Ohio motorcycle-car collisions, I have seen one recurring pattern: a car that abruptly turns left in front of the motorcyclist. This scenario has clearly outweighed other causes of motorcycle-car crashes that I have investigated or litigated. Running a close second is a car that pulls out from a stop sign directly into the motorcyclist's lane.

The reason is simple: car drivers are simply not looking for a motorcycle. The human eye is usually looking in its field of vision for the presence of other vehicles, rather than a motorcyclist. In fact, almost uniformly, the driver's response, in a police report or a deposition, is usually the same: "I looked but I just didn't see the motorcycle."

Obviously, when car meets motorcyclist, the rider almost always loses, and the injuries can be horrific. Because the driver's insurance company faces substantial exposure in any claim or lawsuit, the standard defense in these cases is that the motorcyclist was speeding. This is because under Ohio law, a vehicle or motorcycle that has the right of way maintains that right of way only if he or she is not speeding. Many times this claim is bogus, but it doesn't stop a deep pocket insurance company from arguing it. And let's face it: many people have a negative view of motorcycles and motorcyclists due to a few bad apples who weave in and out of traffic and give all riders a bad reputation. Although this is slowly changing due to the increasing popularity of morotcycles, insurance companies still like to tap into this bias in defense of these cases.

So, if you ride a motorcycle, there are a few take away lessons you need to be aware of. First, always obey posted speed limits, particularly when you approach any intersection. Second, if you're involved in a crash, it is imperative that you speak to a competent attorney or firm that can arrange for an accident reconstructionist to visit the scene to preserve physical evidence like skid or yaw marks, or other valuable physical evidence. Similarly, the ABSENCE of skid marks must be documented at or near the point of impact, as they may be relevant as to the motorcyclist's lack of opportunity to take evasive measures. The passage of time can materially change the physical dynamics of the accident scene, which may make it harder to prove your claim.

Finally, make sure that you or family members get the names of as many witnesses as possible. It is amazing to me how many times witnesses relayed to my clients or a family member at the scene or shortly afterward that they saw what happened, only to find out weeks later that the witnesses were not interviewed or even listed in the accident report. It happens a lot more than you think, unfortunately.

Friday, August 27, 2010

Hospital Replacing Certain Employees....With ROBOTS

Welcome to the future of medical care. A California hospital, in an effort to save costs, has decided to replace certain employees with robots. Apparently these robots are capable of delivering food, supplies, and--get this--medications.

Of course, robots have come a long way, from the robot on Lost In Space (imaginitively named "robot" as I recall), to R2-D2, technically a droid but still a robot in my mind. Now I'm sure that either would have been capable of delivering food, and delivering medications would have been a no brainer for R2-D2 (after all, his computer diagnostic and programming capabilities saved Luke and Leah's behinds on more than one occasion).

But this raises the question: can a robot detect the sudden change in a patient's status, like labored or shallowed breathing, while passing routine meds? Or detect whether a pulse oximeter has fallen off a patient's finger? Can it respond to a patient's sudden onset of complaints? Or provide the touch of a soft hand to calm a patient's fear or anxiety?

And can these robots even detect whether they are passing the correct meds in the first place? Some of this stuff "does not compute" in the human experience. It remains to be seen whether any of it computes to the robots...

Saturday, August 21, 2010

Stupid Video Game Addiction Lawsuit Needs To Go Away

It's lawsuits like this one that really tick me off and blacken the eye of legitimate, deserving lawsuits. Apparently some basement dwelling video couch potato from Hawaii has sued a video game company, claiming that he has played 20,000 hours of a video game over 5 years, leaving him unable to function.

Give me a break. How about this for some advice: drop your frivolous lawsuit, get a job, read a book, volunteer your time in your local community, or learn to surf like thousands of other Hawaiians! My prediction is that this lawsuit will go nowhere. Unfortunately, the damage from this goofball lawsuit has already been done. It's already hit the media, and no doubt groups like The Chamber Of Commerce will parade it front and center as another poster child for what is wrong with our legal system. As much as The Chamber distorts the true realities of our legal system, I will agree with them that this lawsuit is a loser.

More than anything else, it's a slap in the face to those folks who are legitimately harmed and have no choice but to access the legal system to make wrongdoers accountable.

It proves the adage that a few bad apples can spoil the whole bunch.....

Tuesday, August 17, 2010

What If You're Hit By A Driver Who Claims A "Sudden Medical Emergency" Caused The Crash?

Particularly with elderly drivers, sometimes the claim is made that their driver error (like going left of center or heading down the wrong lane of a road or highway) and resulting crash was caused by a "sudden medical emergancy." Is this a valid defense in an Ohio injury lawsuit when the driver crashes into another vehicle and injures occupants of another vehicle?

The Ohio Supreme Court has recognized a sudden medical emergency defense, which provides that a driver suddenly stricken by an unanticipated period of consciousness is not negligent and can't be held liable for losing control of his vehicle. The theory behind such a defense is that the driver's actions were involuntary. However, to qualify for the defense, the defendant must prove that he had no reason to anticipate or foresee the sudden loss of consciousness.

The foreseeability of a medical event is the real issue in these cases. For example, a driver with a history of diabetes and frequent low blood sugars (known as hypoglycemia) cannot claim a "sudden medical emergency" if he or she loses consciousness, because losing consciousness under these circumstances would be a known consequence of low blood sugars, and therefore foreseeable.

The same would hold true for a driver with a history of epilpsy or a heart condition. In fact, the only true instance of a "sudden medical emergency" would be the onset of a serious condition that had not been diagnosed prior to the driver losing consciousness, like a first time heart attack of a driver with no known history of any heart problems.

In these cases, the prior medical history of the driver (including whether the driver was taking prescribed medications, or had failed to take his or her meds around the time of the crash) is crucial in determining whether this is a valid defense, or simply an attempt by the driver's insurance company to deny responsibility for the driver's negligence. And infrequently, when the driver passes away due to the crash, an autopsy is necessary to determine levels of medication usage, and whether the medical condition was "chronic," occurred immediately before the crash, or was triggered after the crash.

Monday, August 16, 2010

One Major Question To Ask If You're Having Gallbladder Surgery

“Will You Take My Picture?”

Over 600,000 people per year in the U.S. have high tech gallbladder surgery with a scope (known as a laparoscope). It is a relatively safe procedure, but there is one SERIOUS complication you need to be aware of.

One of the most devastating injuries that can occur during gallbladder surgery is the surgeon cutting the patient’s common bile duct, which serves as the “highway” for transporting bile between the liver and the stomach. This is a major mistake, and signifies that the surgeon has cut the common bile duct instead of the cystic duct. The cystic duct, which is the “exit ramp” on the duct highway and which connects to the gallbladder, should be cut. The common bile duct – the main highway – should NEVER be cut or damaged. Common bile duct injuries require major reconstructive surgery and can cripple a person’s ability to move bile, which can damage or even ruin the liver.

There is a valuable tool for identifying the anatomy of the bile duct system, particularly the differences between the common bile duct and the cystic duct. It is called a cholangiogram, which is simply an x-ray exam of the bile ducts taken during surgery after dye is injected into the duct. The purpose of this simple x-ray is to help the surgeon identify the bile duct anatomy before anything is cut or removed, and it will even show if a patient’s bile duct anatomy is different than normal.

So, if you are having laparoscopic gallbladder surgery, you should ask your surgeon: “If there is any doubt in your mind as to what you are cutting, will you take an x-ray picture to make sure before anything is cut?”

Although most surgeons do not perform cholangiograms in every surgery, they SHOULD perform one (it takes about 20 minutes) if they are not completely sure of the anatomy of the bile duct system. Any good surgeon should be willing to explain under what circumstances he or she will use a cholangiogram or take other safety steps to avoid a devastating common bile duct injury. And if the surgeon is put off or offended by your question and your medical knowledge, get another surgeon!

Monday, August 9, 2010

5 Reasons Why You Should Consider Having Your Auto Insurance Company Handle Your Collision Damage

I frequently get asked this question: "Why Should I use my own auto insurance company to (repair) (total) my car when the accident wasn't my fault?" In a perfect world, the at fault party's insurance company will immediately send an adjuster to appraise the damage and begin repairs or make an offer on your totalled car. Frequently, however, there can be delays of days or weeks while the at fault driver's company "investigates" the crash. In the meantime, you're stuck with a wrecked car and possibly no rental.

But if you have collision coverage with your auto company, here are 5 good reasons to IMMEDIATELY notify your company and insist on having them handle the matter:

1. In Ohio, your insurance company cannot increase your future auto insurance policy premiums for claims you submit that were not your fault;

2. Your own auto insurance policy may give you the right to an appraisal if there is a dispute about what you are owed. You will have no such right against the responsible party’s insurance company;

3. In some cases, the responsible party may not have enough coverage to fully repair or replace your car, particularly in multiple vehicle accidents where the at fault party’s policy limits must be divided among many damaged cars;

4. If liability is disputed (you claim you had the green light and the at fault party claimed that HE had the green light), the at fault party’s company may only offer you a fraction of the repair/replacement costs. Example: The at fault insurance company might say,“We think you may have run the red light and we think you are 50% at fault so we are only offering you $1,500 for your $3,000 repair bill.” Your own
insurance company can’t make this argument if you have collision coverage, since it covers you if you are completely at fault or free from fault . . . and

5. Finally, if your insurance pays a DIME for repairing/replacing your car, it will get back any money it pays from the at fault party’s insurance company. This is known as “subrogation,” and insurance companies are very sophisticated in pursuing their subrogation/reimbursement rights.

BOTTOM LINE: Notify your insurance company immediately after the crash, and start the ball rolling with them to fix your car if you have collision coverage. DO NOT LET YOUR AGENT TELL YOU THAT YOU MUST “GO THROUGH THE AT FAULT PARTY’S INSURANCE COMPANY” TO GET YOUR CAR FIXED. This is not only wrong, but illegal in Ohio under the Ohio
Administrative Code (OAC) section below:

Except as otherwise provided by policy provisions,an insurer shall settle first party claims upon request by the insured with no consideration given to
whether the responsibility for payment should be assumed by others.

Your claim is a “first party” claim whenever you are dealing with your own company. Therefore, your agent/company cannot legally tell you that you must “go through the at fault party’s company first” because of the section of Ohio law noted above!

This does not mean that you should NEVER attempt to have the at fault party’s insurance company pay for your car repairs. Many times, the at fault party’s company steps up to
the plate, and promptly and fairly takes care of any repairs/replacement. But you should know that, in some circumstances, it CAN be better to have your company handle the loss, because it gives you more options and rights.

Thursday, August 5, 2010

Making Sure Your Boaters Insurance Protects You If You're Injured On The Water

I had to laugh when I read this primer on boat insurance from The Insurance Information Institute. Simply put, they missed the boat.

These so called experts failed to mention the most important coverage you need to carry with your boat insurance: uninsured boater's coverage. As an avid fisherman who spends lots of time on the water, I have observed the following: many boaters have no idea about the "rules of the water" for boating safety. They ignore simple "right of way" rules in place when two boats are approaching each other. Others fly around in high powered crafts and jet skis as if the local lake or river is a free for all. Even worse, some view alcohol as "optional equipment." And when you take a look around on the water, ask yourself: "does it look like that boat would carry liability insurance?"

All this adds up to one thing: you run a risk of getting plowed in your boat by an unsafe or uninsured boater. But there is a simple way to protect yourself. Ask your agent or company about "uninsured boaters coverage." This protects you and your family if you are hit by a boater with little or no liability insurance.

Even better, it's cheap. If your company doesn't offer it, find one that does. And in the meantime, take a boat safety course with your local Power Squadron. Bewteen these two simple steps, you'll be as protected as you can be when you hit the water.

More Reasons Why Your Ohio Malpractice Case Might Be Lost


What is medical negligence or malpractice? Reduced to its most simplest terms, medical negligence is: (a) doing something that a reasonably prudent physician or hospital would NOT do; or (b) failing to do something that a reasonably prudent physician or hospital WOULD do. For example, a medication error or overdose, or leaving a large foreign object in a patient during surgery, are acts of negligence that a reasonably prudent physician or hospital would NOT do. By comparison, failing to timely order diagnostic tests that would have prevented conditions like a heart attack, stroke, or cancer, would be examples of failing to do something that a reasonably prudent physician or hospital WOULD do.

Sometimes a careful review of the medical records may reveal that a surgical error or error in technique, occurred, despite what the “official” records say. Other examples of malpractice would include an operative or post-operative infection was in fact preventable, OR was not timely diagnosed and treated with appropriate antibiotics, losing a valuable window of opportunity for the patient.

However, a simple bad result after a surgery or other medical procedure does not, by itself, necessarily mean that medical negligence occurred. For example, a surgery that fails to alleviate a patient’s symptoms, does not necessarily mean that the physician was negligent. For example, physicians can perform a surgery or procedure “by the book” and a bad result can still occur.

As the old saying goes, “the devil is in the details.” Only an experienced malpractice attorney, who has spent years reviewing hundreds or thousands of cases and deciphering medical records, can distinguish between an unfortunate “bad result” and facts that are suggestive of medical negligence, and a more extensive evaluation.

Monday, August 2, 2010

What You Should Know If You're In A Crash With A Driver With Little Or No Liability Insurance

Here's a familiar scenario: you're involved in a crash with another motorist. The insurance company representing the at fault motorist promises to "work with you" regarding your claim. Months or years go by, you've had extensive treatment for your injuries, and now it's time for the insurance company to make you a "reasonable offer."

You're now approaching the two year anniversary of your collision. The offer from the insurance is anything but reasonable. One possible reason for the lowball offer is the fact that the at fault driver has low liability limits. In Ohio, the state minimum limits are a mind boggingly low $12,500--in fact, 48 states have higher state minimum limits.

So here's what's probably happening: the insurance company's goal is to save whatever it can on its $12,500 limits by making an offer below that amount. Meanwhile, they will not divulge its insured's true liability limits, leaving you wondering why they made you such a crappy offer.

If the at fault party truly has minimum limits and your injury claim is worth more than $12,500, you may have an underinsured motorists' claim with your own company, assuming you have purchased "uninsured/underinsured motorists" coverage. But here's a little known fact: your insurance policy obligates you to notify your insurance company that you are making an underinsured motorists' claim. And some policies require you to notify your insurance company within a set period of time, or else you will waive your potential claim.

Good luck with figuring all this out on your own while the at fault party's insurance company is "working with you..."

Sunday, August 1, 2010

Why You Should Not Wait To Hire An Attorney After A Crash With A Commercial Or Large Truck

If you or a loved one are injured in a crash with a commercial or large truck, here's what you need to know. Within minutes after a serious crash, the trucking company or its insurance company has probably dispatched a "rapid response team" to the crash site. This team usually consists of an adjuster or risk manager, a trucking company representative (usually the safety manager), and/or an "accident reconstructionist" (an expert who can take measurements of skid or yaw marks, record the presence of debris, and examine other physical evidence to determine speed, point of impact, resting position of the vehicles, etc). Believe it or not, many times the trucking company's insurance attorney accompanies the team to the scene. And, frequently, the team arrives even before law enforcement responsible for crash investigation can get to the scene!

An obvious question is: what is the interest of the trucking or insurance company in dispatching this team to an accident scene within minutes or hours of a serious crash? Is it to preserve evidence to get to the truth of what happened,even if it incriminates the trucking company, or is it to find ways to minimize the trucking company's liability? In a perfect world, all evidence--even incriminating evidence--would be preserved, but, sadly, this is not often the case.

In numerous Ohio truck crash cases, I have discovered countless instances where photographs, trucking logs, bills of lading, maintenence records, fuel receipts, and other important records have gone missing or were destroyed. One way to counter this is to send an immediate "spoliation letter" to the trucking company demanding that the company preserve all photographs, physical evidence, post crash records, drivers logs, black box data, and other important information. The trucking company's failure to heed this letter can set the stage for a claim for punitive damages if the requested information turns up missing months or years later.