Thursday, December 13, 2012

Questions You'll Be Asked During An Insurance Company Recorded Statement

If you've been in an Ohio car or motorcycle accident, you'll soon meet up with an adjuster who wants to take a "recorded statement" from you. We typically advise our clients (or potential clients who call) not to give a recorded statement to the at fault party's insurance company (as we have discussed here), but for those of you who are contemplating giving one to the adjuster, the following guide may help you prepare for what you may be asked:


NOTE: This was a recorded statement taken by our client’s own insurance company seeking information. The adjuster did not ask the client for a social security number because the client’s insurance company already had it on file.

These interviews are basically “scripted” and the questions are typical ones you’d expect to see in any initial “interview.” How do we know they’re scripted? In this case, for unknown reasons, the insurance company made the client go through two recorded interviews (both were given before the client hired us). Both interviews were essentially identical. The client’s answers have been deleted for obvious reasons.

1. Could you please state your full name?

2. Do you understand that this interview is being recorded?

3. Is it being recorded with your permission?

4. If I need to share the information with another adjuster, may I do so?

5. What is your address and telephone number?

6. What is your date of birth?

7. What is the year, make and model of the vehicle you were driving?

8. Are you the registered owner of that vehicle?

9. Were you using the vehicle for any type of business or government use?

10. Were there any minors or passengers in the vehicle with you?

11. What was the date of your accident?

12. Around what time?

13. How many vehicles were involved?

14. What street did this happen on?

15. Was the weather a factor in the accident?

16. Was the traffic light, moderate or heavy?

17. What happened?

18. What type of damage was done to your vehicle?

19. Do you know what type of damage was done to the other vehicles?

20. Was there any type of evasive action that was able to be taken to avoid the accident?

21. Were you under the influence of drugs or alcohol?

22. Were you using a cell phone or any other electronic devices?

23. Was anything obstructing your vision?

24. Do you know how fast the other party was going?

25. Do you know what the speed limit is on that road?

26. Was your vehicle towed?

27. Were you wearing your seatbelt?

28. Did your airbag deploy?

29. Were the police called to the scene?

30. Was there a report taken?

31. Do you have the report number?

32. Was a ticket or citation issued?

33. Were the vehicles moved before the police arrived?

34. Did the police take statements from the drivers?

35. Were there any witnesses that saw the accident?

36. Do you have the witnesses’ contact information?

37. Was there property damage to street signs, poles or anything else?

38. Were you injured in the accident?

39. What type of injuries did you sustain?

40. At the moment of the impact, were you thrown forward, backward or sideways?

41. Did any part of your body make contact with the vehicle?

42. Was there any ringing in your ears or popping in your jaw?

43. Did you have any deep cuts or lacerations?

44. Was there any emergency treatment performed at the scene?

45. Were you taken to the hospital?

46. What hospital did you go to?

47. Were you transported by ambulance?

48. What treatment have you received since the accident?

49. Do you know the name of your doctor?

50. What type of treatment plan are you currently on?

51. Are you taking any medication?

52. If you can rate the pain that you feel now, 10 being the worst, 1 being the least, how would you rate your pain?

53. Did you have any prior injuries that could have resurfaced because of the accident?

54. Do you know the total amount of your medical bills to date?

55. How much time did you miss from work?

56. Where do you work?

57. What is your position there?

58. Are there any physical requirements for your position?

59. What is the name of your immediate supervisor?

60. Do you know a phone number for your supervisor?

61. Are you paid hourly or salary?

62. How many hours do you work per week?

63. What is your salary?

64. Do you make any type commissions or bonuses?

65. How long have you worked there?

66. What type of medical benefits do you receive?

67. Do you know if any of the other parties in the other vehicle were injured?

68. Is there anything in reference to the accident that you would like to add that we have not discussed that we should know about?

69. Have you understood all these questions?

70. Is this recording true and correct to the best of your knowledge?

71. Has this recording been made with your knowledge and consent?

72. Would you state your name again please?


Monday, December 3, 2012

Insurance Company Gets Hacked--Another Good Reason Not To Give Your Social Security Number To The Adjuster/Insurance Company

"We need your client's Social Security number to process the claim." This is a standard request from an adjuster when we notify the responsible party's auto insurance company that we will be handling the claim on behalf of our client.

Our standard response is to refuse for two reasons. First, divulging our auto accident client's SS No allows the at fault party's insurance company access to a number of databases that allow them to snoop around to see if the client had an injury or homeowners' claim 13 years ago, or had a workers compensation claim, for example. It even allows access to our client's credit history and credit scores. What's more, they don't share the results of their fishing expedition, which is a good reason to refuse to give them such personal information.

Second, I have always taken the position that divulging the client's SS No created privacy and information/identity theft concerns due to computer hacking and other cyber crimes. The usual responses to this are either an incredulous "gimme a break,"  "you're just being difficult," or "our computer systems are safe."

And now this news: Nationwide just got hacked by some computer "propeller heads" and exposed over 1 million people to access to personal information and Social Security numbers. Who knows the implications of this major security breach, but it proves our point that identity theft is a real concern, and not one that should be dismissed.

Insurance companies may EVENTUALLY need an Ohio auto accident victim's SS No in order to comply with new Medicare regulations requiring insurers or us to verify that the client is or was not on Medicare or eligible for Medicare at the time of the crash (this is because Medicare has a right or reimbursement for any auto accident bills Medicare pays). But this problem is easily solved by producing our clients' SS No's AFTER the case or claim settles.


Tuesday, November 27, 2012

Patient Safety Tip: Avoid Afternoon Surgeries (And Friday Surgeries Too!)

A recent CNN article from a surgeon makes a good case for avoiding afternoon surgeries if at all possible.
The reason? Your surgical team might be sleepy. He argues:

Our bodies follow natural circadian rhythms, which regulate our sleep/wake cycle, brain wave activity and certain bodily functions. These circadian rhythms dip between 3 and 5 p.m. each day, causing many of us to feel sleepy.

I hear ya, Doc! Everyone hits a lull during the workday, especially after lunch. Combine that with a busy surgical schedule that often starts around 7:00 a.m., and it's easy to see why drowsiness and inattention might set in in the Operating Room.

From our experience in handling Ohio malpractice claims, I would add Friday surgeries to the list to avoid. Although not scientific, I have seen an anecdotal correlation between Friday surgeries and medical negligence. I recall distinctly two cases where physicians were in a hurry to "finish up" at the end of the day, and performed procedures that should have waited until the patients were more stable. Another involved a surgeon who made a mistake during the operation, and assumed the patient's immediate post-operative symptoms were "normal" when a CT scan would have revealed the surgical error. The patient was sent home, only to return the following Monday with life-threatening symptoms.

My best guess is that midweek morning is probably the best time to schedule any procedure. There is something to be said for "hump day" after all...

Monday, November 26, 2012

Does Signing A Consent Form Prohibit You From Bringing An Ohio Medical Malpractice Claim?

"Well, the doctor may have screwed up but the patient did sign the consent form, so....."

This is a common thought amongst jurors or focus groups in evaluating malpractice claims. After all, everyone has to sign the standard medical "consent form" for any procadure whether it's a colonoscopy or bypass surgery. But as ESPN college football analyist Lee Corso says, "not so fast, my friends...."

Medical negligence claims in Ohio can be divided into two basic groups. One is "informed consent." Basically, this means that every physician has the obligation to inform you as a patient of all the material risks and benefits of any procedure, so you can make an intelligent decision as to whether to go through with the procedure. The "risks and benefits" of the procedure are usually covered through a combination of discussions with the physician, and the medical consent form.

I don't care how minor the procedure, the consent form usually has some standard or "boilerplate" acknowledgment that the procedure can potentially cause bleeding, infection, paralysis, or even death. You could probably find that language in a consent form for removal of a hangnail. This is standard "CYA" language that protects a physician from a claim that he/she did not  provide proper "informed consent" before the procedure.

But Ohio law makes it crystal clear that giving proper informed consent does not excuse the physician from performing the procedure in a negligent manner. Some examples illustrate this point. For example, if you sign a consent form for amputation of your right leg, the physician is still negligent if your left leg is inadvertantly cut off. Similarly, if a foreign object is left inside your body after surgery and causes major injury or death, the physician or hospital is negligent, and can't hide behind the consent form that warns the patient of the risk of injury or death.

Likewise, if an anesthesiology consent form advises of the risk of brain damage or death, the anesthetist can still be held liable if he/she allows a patient to lapse into anoxic brain damage due to a failure to properly monitor the patient's breathing or respiratory status during or after the procedure.

Bottom line: a consent form does not give a physician or hospital a license to perform the procedure in a negligent manner. In other words, you as a patient can't "sign off" on the physician's negligence.      

Tuesday, November 20, 2012

"How Much Should I Ask For In A Settlement?"

Occasionally we get this question from someone "going it alone" without an attorney. First, there are quite a few reasons NOT to represent yourself in your personal injury claim (and 1 reason where it's OK) as I wrote about in our book: "Your Ohio Accident Claim: Sorting Through The Insurance Maze (available for free through our website

But if you are inclined to roll the dice with the friendly adjuster and the insurance company, the true answer to this question is: it's really hard to know without knowing a lot of detail about what happened. Was the collision a 5 mph love tap in the mall parking lot, or did someone run a stop sign at 45 mph and obliterate you? Were you hit by a slobbering drunk driver who fled the scene and later blew a .018--double the legal limit--or a nice elderly woman coming home from the church picnic?

These things make a difference.

More importantly, as we like to say, the "devil is in the details." One of the first things I do to evaluate an auto or motorcycle accident claim is to order and then read your medical records. They are liable to say ANYTHING, and they can make a difference in the evaluation of your claim. Take, for example, this entry in a client's physical therapy records from a few years ago:

"Patient reports increased pain after playing 17 games of softball over the weekend."    
Now this client was in a really bad crash and she needed quite a bit of doctor ordered physical therapy. But her auto accident injury claim ended with that PT entry/record. I told her: "If you're well enough to play 17 games of softball, you have recovered from your injuries in the eyes of the insurance company, and any bills you incur after that will not be related to your claim."

You can be sure the insurance company will be reading those records with the blank authorization you gave them to enable them to order the records. And most folks who call me while "going it alone" have not even bothered to read their own records and have no idea what they say (yet another big mistake they make while representing themselves).

This is just one example of why it is very difficult--and frankly quite stupid--for any personal injury attorney to give an opinion of claim value over the phone. I tell my clients the same thing at the initial client consultation: "I will eventually be able to give you a value or a range of values on what your injury claim is worth, and I'll meet with you in person and go over it. But only after I have reviewed  everything--the police report, all of your records, bills, EOB's, lost wages, photographs, and other materials. If you're looking for an instant evaluation on the first visit, you've got the wrong person and need to go elsewhere."

I say this even in situations where I have a good idea as to where the claim may go in terms of settlement value. Sometimes little things crop up that you discover that sway the value of a claim in either direction--both good and bad.

Knowing where to look separates us from the guy or gal who has never negotiated a single auto collision claim against an insurance company, much less their own.

Handling, evaluating, and negotiating auto, motorcycle, or truck accident claims may not be the equivalent of preparing a seven course meal for a table of food critics. But it ain't "instant oatmeal" either. Some attention to detail, and some good old fashioned time, are necessary ingredients as well.

Thursday, November 1, 2012

Anesthesia Errors During Outpatient Procedures--Some Questions To Ask Your Team

Many patients have the perception that anesthesia in simple outpatient procedures is "no big deal." After all, day in and day out, colonoscopies, upper airway endoscopies, and other diagnostic tests under anesthesia go without a hitch. For the most part, they're right.

But anesthesia for any procedure is like airflight: it requires a successful takeoff (introducing the drugs that knock you out, known as "sedation") and a landing (reversing those drugs and returning you to consciousness).  As we all know from airflight, occasionally there is a crash. Unlike an FAA investigation of a plane crash, which is public and transparent, anesthesia error--medical mistakes involving serious injury or death are not investigated for public consumption and education. In fact, many times patients' families are left to guess or speculate as to what really happened behind the curtain.

But from having investigated and handled a few of these cases, here's four basic questions you or any loved one should ask if you're having an outpatient scope or procedure of any kind involving anesthesia:

1. Who is doing the sedation—the Doctor performing the procedure, an anesthesiologist, or a Certified Registered Nurse Anesthetist (CRNA) under the direction of the Doctor performing the procedure?

Take colonoscopies, for example. If the Doctor doing the colonoscopy is also perfoming the sedation (and many do) they tend to give you less sedation than an anesthesiologist might.  They will typically induce you into a state of either "moderate" or "deep" sedation. Moderate sedation means you are arousable to verbal stimuli (“hey Sarah, wake up”).  It's a tradeoff of sorts: You're less likely to get into trouble from a respiratory depression standpoint with "moderate" sedation, but you may feel a bit of pain temporarily.

Compare that to deep sedation, which an anesthesiologist might be more inclined to induce during a procedure. Deep sedation means you are only arousable to painful stimuli, like them pinching you or rubbing your sternum. It's better for pain relief  and amnesia during the procedure but here's a potential problem: sedation is a continuum. Often there's a fine line between deep sedation and "general" anesthesia, which means you're unconscious, even to painful stimuli.

Why does all this matter? One of the major risks of anesthesia is respiratory depression due to the effects of the anesthesia drugs. If respiratory depression occurs, it can cause a lack of oxygen and circulation to the brain, which can cause anoxic brain damage, cardiac arrest, and even death.  You don't need to be "overdosed" on anesthesia drugs to lapse into respiratory depression.

So any patient should want to know: what level of sedation are you shooting for? Whatever that answer is, more importantly the next question is…..

2. How will I be monitored during the procedure?

The gold standard and the BEST AND MOST ACCURATE monitoring is “end tidal C02 monitoring.” This measures how much carbon dioxide (CO2) you expel breath by breath. How much or how little CO2 you’re expelling is the most accurate measurement of how well you’re VENTILATING.

Pulse oximetry (that little thing they put on your finger) only tells you if you’re getting enough oxygen (O2). You can be getting lots of O2 but if you’re not taking it in because the anesthesia drugs are preventing you from doing so by depressing your respiration (you’re not ventilating well), the pulse ox monitor won't necessarily show it until the respiratory depression reaches a crisis level. The CO2 monitor will alert the Doctor/anesthesiologist/CRNA of an IMMEDIATE possible respiratory depression problem.

If you have general anesthesia during an operation, for example, it is standard for your monitoring device to include a CO2 monitor (in addition to the basic vital signs monitoring like BP, Heart rate, pulse oximeter). However, some outpatient centers did not bother with CO2 monitoring for outpatient procedures until recently. In 2011, the American Society  Of Anesthesiology (ASA) mandated CO2 monitoring even for moderate sedation:

During deep or moderate sedation the adequacy of ventilation shall be evaluated by continual observation of qualitative clinical signs AND monitoring for the presence of exhaled carbon dioxide unless precluded by the nature of the patient, procedure, or equipment.

 Why did the ASA mandate CO2 monitoring? According to a 2009 study of outpatient procedure anesthesia error claims or lawsuits spanning 19 years, inadequate oxygenation/ventilation was the most common respiratory-related adverse event in outpatient procedure claims, occurring 7 times more frequently than in hospital operating room claims. And the injuries that occurred in outpatient facilities were more often judged as being preventable by better monitoring.

 So ask the facility or the doctor performing the procedure in the office if they'll be using a CO2 monitor. If they aren't, they’re possibly being cheap and cutting corners on safety and don’t want to spend the money for more advanced monitoring. If that's the case I’d pass and go somewhere else.

3. When I’m moved from the room to recovery, are the monitors kept on or removed?

Most places will leave the monitors on as they transport you from the procedure room to the recovery room. If they don't, that doesn't necessarily mean it's unsafe because it's usually a short trip from the procedure room to the recovery room. But it can be an issue if there was a problem during the procedure (say your heart rate dropped and they had to give you drugs to bring it back up again) and you now need to be moved so the room can be cleared for the next procedure.

4. Are all of your nurses ACLS certified?

This stands for "Advanced Cardiac Life Support." This is training and certification for nurses and physicians so they'll know what to do and what drugs to give if a patient has a life threatening condition during or after the procedure for any reason. Most outpatient centers require ACLS certification. But if you're having the procedure done in an office setting, this may be an important question to ask.

Anyone giving you anesthesia for an outpatient procedure, no matter where it is--hospital, outpatient center, or doctor's office--should be willing to answer these simple questions.

Wednesday, October 24, 2012

Obvious Medical Errors--Don't They Just Settle Those Without A Lawsuit?

We've all heard of some egregious, newsworthy medical errors: sponges, clamps, and towels left in the abdominal cavity after surgery, operating on the wrong body part (known in medical speak as "wrong site surgery"), patients being dropped from beds, surgical flash fires in the operating room--I could go on.

I'm often asked: "In cases of blatent negligence, don't they just settle those right away without a lawsuit?" The answer, suprisingly to the public (but not to me) is: "usually not." But "upon further review," as they say in the NFL, the reasons are fairly clear.

Take any of the above examples of preventable medical errors. Any medical procedure is a team affair, involving surgical nurses, circulating nurses, surgical techs, not to mention the surgeon. Many hands touch the patient. Now take the example of the "foreign object left behind" like the 8 inch metal clamp left tucked behind Mr Jones' small intestine when they were removing his bowel obstruction.

When the radiology tech drops her morning coffee upon first seeing the clamp on film weeks or months later, the bad news spreads quickly and up the chain to the "risk management" department of the hospital. Their job is to get to the bottom of what happened. When the surgical "team" is informed about what happened, many times finger pointing rather than "mea culpa" is the order of the day.

What's more, hospitals often hide behind "peer review" legal protections as a means of not being transparent with a family about what happened.  Peer review is an internal process where hospitals investigate medical errors and incidents, usually through a committee, in order to improve patient safety. Ohio, like many other states, protects this process by making the investigation privileged. This may be well and good for future patient safety, but the family of someone who just had the wrong side of his brain operated on usually wants to know what the heck happened. Many times, they are met with some nice person from the hospital who essentially kicks the can down the road, or speaks in vagaries, or occasionally invokes the "peer review" card by saying "I can't get into that per hospital policy, but I can assure you we have made changes to make sure this doesn't happen again" blah blah blah.

Some hospitals are getting smarter about this and are being more transparent about what happened and explain how, for example, a patient with a wristband that said "allergic to morphine" was given ample doses of it. They're learning that invoking "peer review" after a head shaking medical error goes over like the proverbial meadow muffin in the punch bowl.

But I can't tell you how many times I've seen hospitals dodge and weave instead of fessing up and admitting error. And nobody on behalf of the physician or hospital approaches the family or their attorney to resolve the claim without a lawsuit being filed. Their message many times seems to be: "Yeah, we screwed up, but go ahead and sue us and spend thousands on experts, and we'll get our own experts to say what we need them to say, and we'll see you down the road."

Some of us are old enough to remember the Fram oil filter commercial that ran during almost every football and basketball game I watched as a kid.  A laughing mechanic overhauling an engine said at the end: "Fram oil filters--pay me now, or pay me later."

Paying later seems to be their default position, despite the fact that the price is steeper.


Sunday, September 30, 2012

"I C Ur Injured--" Law Firms Texting Ohio Auto Accident Victims

Anyone not living on an island knows that texting has become the new craze amongst the younger generation. Even we "older folk" are getting in on the act. Now, certain law firms have taken texting to new lows and are now texting Ohio auto accident victims with a number to call, presumably to them or a "help center" that eventually directs them back guessed it...a law firm.

How do they accomplish this? By hiring "runners" to obtain motor vehicle accident reports, which often contain the victims' phone numbers.  In my opinion, this conduct is unethical and in direct violation of Ohio's Rules Of Professional Conduct. Rule 7.3 directly prohibits any lawyer from soliciting professional employment "by in person, telephone, or real time electronic contact."

Here's a good question for Ohio auto accident victims to ask themselves: why would you consider hiring any attorney or firm that is unethically and illegally soliciting you as a client from the get go? Moreover, what is their motivation for bombarding you days after an accident or a tragedy with countless texts (not to mention illegal phone calls, and legal but tasteless mass mailings, brochures, DVD's, and other junk?)

If you want to sign up with anyone who pursues you like a mad dog in a meat market, that's your choice. But you should know that some of these practices are violating our ethical rules. And that should tell you all you need to know.

I would suggest a response text such as: "thx but no thx." But the best one of all, and the one that will guarantee you won't be harassed any further by them, would be: "I red rule 7.3. C U later."

Friday, September 28, 2012

DiVinci Robotic Surgery Update

Recently I wrote about some of the hazards and risks associated with the next new shiny object in the surgical world: the DiVinci Robot. Hospitals have forked out millions for these robotic surgery machines, and when this happens, you can expect marketing to follow--in the form of newspaper ads, billboards, and fancy commercials touting the wonders of the robot--as I wrote about here.

Recently, lawsuits in Alabama and Michigan were filed alleging that the DiVinci's imroperl/defective design has harmed patients during surgery. The lawsuits allege that allege that "faulty insulation, stray electrosurgical current and insufficient user training led directly to patients' injuries or deaths." In one case, a patient sustained injuries to her ureter and bladder during a hysterectomy. In another hysterectomy case, a woman died after the robot's current injured an artery and her intestine.

What does this mean for patients who are presented with robotic surgery as an option? It means you should have some serious questions and concerns about it.

Wednesday, August 22, 2012

Another Good Reason To Avoid Attorney And Chiropractor Solicitations After An Auto Accident

It's no secret that we have railed against some attorneys and firms who "solicit" injury victims after an auto accident. These tactics range from offensive to shady (the practice of hiding behind third party "injury help centers" that call victims and steer them to chiropractors and attorneys with questionable sales pitches), and some are downright illegal.

We don't do any of this stuff and we're proud of that, even if it means less business for us.

But now the newest mutation in the solicitation shenanigans: A Florida hospital employee has been arrested in allegedly stealing patient information and records from over 760,000 patient records and selling all of it to attorneys and chiropractors.  My guess is that these records involved various accidents or other calamities.

Every time I think that these practices can't sink any lower, something as astonishing as this comes along. The employee was just recently arrested, so it could get very interesting down the road as federal investigators follow the paper trail and blow the lid off of this powderkeg.

It's gotten to the point that accident victims really can't trust any post-accident phone calls or "inquiries" about their collision, nor should they. Just how can accident victims make an informed and intelligent choice amongst a sea of letters, brochures, DVD's,  numerous phone calls, and now, possibly stolen patient information???

It used to be that picking an attorney or firm out of the phone book was the equivalent of Russian Roulette. Post-accident solicitation is now the new form of this dangerous game.

The good news: over 95% of Ohio personal injury attorneys do not engage in these practices. And word of mouth is still a tried and true method of choosing competent attorneys in this dizzying and sometimes suspect maze.

Thursday, August 16, 2012

The Myth Of "Free Markets" When Tragedy Strikes

Yesterday 28 year old Connecticut woman tragically died in a parasailing ride gone awfully wrong in Pompano Beach, Florida. She and her husband plummeted into the ocean from a height of 200 feet when their safety harness broke.

This is the second parasailing fatality in Pompano Beach since 2007. According to the city's mayor, there is little to no regulation or oversight of this recreational activity:

Parasailing companies operate in Florida with little-to-no regulation from the state or the federal government. Mayor Fisher said he has been pushing for legislation to impose stronger safety standards.
“And obviously it fell on deaf ears,” Fisher said. “And so here we are today, losing another life because of no inspections and no opportunities to make sure that this equipment is safe. For someone to have come down on vacation to Pompano Beach, it’s inexcusable to me.”
Imagine how upset her husband and parents would rightly be over what happened here. My guess is that the parasailing outfit touted how "safe" its practices were, and nobody put up a sign on the door of the business that said: "there is no real regulation or oversight of the parasailing industry." In fairness, we don't know how safe or unsafe this outfit was and only time will tell whether this tragedy was just a matter of time, or whether there were extenuating circumstances.

But it sounds to me like this was a classic "free market" industry that certain politicians and people love to promote and yearn for. "Let these businesses regulate themselves" and "government stay out" is often their clarion call. Sounds great on paper until something like this happens. And then many of these same folks then say (with a straight face): "What the hell is going on here? You mean that they're allowed to run a risky business like this with no inspections or oversight?" "Where is the government in all this and why have they not stepped in and stopped these dangerous practices?."

Therein lies the conundrum. Many times, lax or no regulation opens the door to cutting corners and taking shortcuts that often lead to tragedies like this. Would increased oversight have guaranteed this would not have happened? Of course not. Many heavily regulated industries, like the trucking industry, still have a fair number of preventable trucking collisions due to shoddy hiring practices, imposed driver fatigue, and other shortcomings.

But one thing is for sure: when there is no watchdog, deterrant, or minimal oversight, it's only a matter of time until people get hurt. Ironically, the cries for "less regulation" come at a time when the business community is lobbying in frenzy like fashion for "legal reforms" that limit wrongdoers legal responsibility, dole out lawsuit immunity like candy, and limit what injured people can recover in legitimate lawsuits involving truly preventable injuries. It's the perfect lobbying trifecta: less regulation, less lawsuits and less liability. So much for the "personal responsibility" and "accountability" that these same groups and politicians love to preach about when it comes to individuals (and so much for the "corporations are people too" drivel...)

And don't tell me that "doing the right thing" and the self incentive for safety is enough to make companies sell a safe product or service. The Pinto, Firestone tires, Vioxx, bladder suspension vaginal slings, The Massey Mine collapse, Wall Street molesters of our economy and retirement plans, and a whole host of other offending products and incidents come to mind.

Allow me to borrow from the "freedom isn't free" bumper sticker I see all the time. Free markets aren't free either. They come with a price. And sometimes the cost is something you can't add with a calculator: human life. 

Wednesday, August 1, 2012

Physician Age And Malpractice: Is There A Correlation?

According to a recent article from The American Medical Association (AMA), hospitals are starting to scrutinize the relationship between physicians' age and the quality of care they provide. A study cited in the article summarized the potential scope of the problem:

A Feb. 15, 2005, Annals of Internal Medicine systematic review of 62 studies found that 52% of those studies demonstrated a decline in physicians’ quality linked to advancing age and the passage of years since their medical school and residency training.

As I reflect back on all the medical malpractice cases I have litigated, I have seen a direct relationship between age and substandard medical care on only one occasion. In that case, an elderly surgeon (i think he was approximately 70 years old) obliterated my client's common bile duct during routine laparosopic gall bladder surgery. This is a definite no no during gall bladder surgery, as it is the VERY structure a surgeon is NOT supposed to cut, for it has disasterous consequences for a patient's ability to move bile from her liver to her stomach.

To make matters worse, one month before he cut my client's bile duct in half, he did the exact same thing to another patient's bile duct during another gall bladder surgery. The sad part of it was that, at one time, this surgeon enjoyed a good reputation in his local community. My take on it was that it was not advanced age that became his nemesis. Rather, it was pride and ego and arrogance and not knowing when to throw in the towel.

These fralties seem to be more prevalant and contribute more to medical negligence than advanced age, in my experience. To that list I would add complacency as a major contributor to malpractice. On too many occasions, I have seen otherwise competent physicians that carry an "I've seen this before" or "I have done hundreds of these before" attitude to a procedure or a set of symptoms. This leads to overconfidence or even arrogance and a failure to not do more in the face of symptoms that call for action.

I suppose that it's a good thing that hospitals are probably very quietly looking into this issue. But, in my humble opinion, complacency is immune to age. What every professional--doctor, lawyer, accountant, whover--needs to remember is that a know it all or complacent attitude knows no chronological boundries.   


Monday, July 16, 2012

Why Is The Adjuster Making Me A Low Ball Offer?

The reason is simple: because she can. After almost 25 years of representing Ohioans in auto, truck, and motorcycle accident injury claims, there is one thing I'm sure of: the relationship between you and the insurance company you're dealing with is an adversarial one. It is not a business model that's designed to be "fair" to you or transparent.

As proof of this, ask any adjuster any of these questions after they contact you: (1) Will you allow me to take a recorded statement of your insured, the person who smashed into me?  After all, they will require a recorded statement of you. (2) Will you divulge your insured's Social Security number? A standard request they will ask of you to snoop into your financial and credit history. (3) Will your insured sign an authorization allowing me to obtain his medical records both before and after the crash? You can bet they'll ask you to sign these authorizations, which give them a blank ticket to fish around in your medical history YEARS before the crash.

(4) What are your insured's liability limits? They'll ask all about your sources of insurance, such as your auto medical payments and health insurance coverage. (5) Will you pay my medical bills as they come due and reimburse me for mileage and gas for all of my doctors and therapy visits? 

As you'll soon learn, this is a one way street. You will jump through all kinds of hoops, signing all their papers, operating on faith that they'll "do the right thing...and frequently receive nothing in return from the insurance company. And be prepared to hear "company policy does not allow us to divulge that information." See how this works? How do I know this? It's one of the main reasons why people call me after getting nowhere with the insurance company.

This doesn't make the adjuster or the insurance company evil. It's just that their goal, their mission, their reason for existing, is to pay as little as possible. But it doesn't mean you have to accept it, unless you like the equivalent of slamming your head against a concrete wall.


Sunday, July 15, 2012

Does A Prior Felony Conviction Affect My Ohio Car Accident Claim?

What does a prior felony conviction have to do with your Ohio auto accident injury claim? Plenty, if your felony conviction was a "crime of dishonesty."  Under our rules of evidence, convictions for crimes of dishonesty are admissible to "impeach the credibility" of any witness, and that includes you if you take the stand and testify in your Ohio personal injury claim.

What is a "crime of dishonesty?" Theft, perjury, falsification (filing a false police report), and criminal fraud are just a few of these crimes. Bascially, this rule of evidence allows the party you've filed a lawsuit against to argue that you may be dishonest as to how the accident happened or your injuries testimony because of a history of prior acts of dishonesty--known in legal talk as "impeaching your credibility."

Whether you think that's fair or not, that's the law. I guess it's the law's way of saying that there are certain spillover consequences for dishonesty. But it also applies equally to the defendant in any personal injury lawsuit who has a past history of similar crimes.

In any event, it is a standard question any Ohio personal injury victim can be expected to answer from his or her attorney, and the other party's lawyer as well.

Tuesday, July 10, 2012


I can prove to you with simple math why your “full coverage” Ohio auto insurance policy is one sided and will leave you scratching your head AND possibly owing thousands in medical bills after a crash. More importantly, after you realize how “insurance company math” works, you can fix your policy with one that will protect your family.


SIMPLE MATH EXAMPLE NO. 1: 50 + 50 = 100 (Any second grader knows this)


Huh? Let's see how a real world example of this fuzzy math does a real number on your "full coverage" auto policy after a crash.

A driver turns left in front of you, putting you in the hospital and on the surgeon’s table for numerous fractures. The driver had $50,000 in liability coverage. You purchased a “full coverage” auto policy with uninsured and underinsured motorists (UM/UIM) coverage of $50,000.

Assume your claim is worth $100,000. Simple math would tell you that you can collect $50,000 from the negligent driver’s insurance company AND $50,000 from your own insurance company under your UM/UIM coverage, right? (After all, this is why you bought UM/UIM coverage – to make a claim under your own policy/UM/UIM coverage if the driver had no insurance or not enough to cover your injuries).

Wrong. Your “full coverage policy” has fine print language prohibiting you from collecting a penny of your $50,000 UM/UIM coverage unless you had more UM/UIM coverage than the driver who hit you had in liability coverage. Perfectly legal in Ohio.

Result: You collect only $50,000 total – half of what you’re entitled to. And you collect NOTHING from your own insurance company even though you paid a separate premium for $50,000 in UM/UIM coverage.

SIMPLE MATH EXAMPLE NO. 2: 50 + 100 = 150


Explanation:  Again, the negligent driver had $50,000 in liability coverage. Let's assume that you bought $100,000 in UM/UIM coverage and that your injury claim is worth $150,000.

Result: You can only collect $100,000 – $50,000 from the negligent driver’s policy and $50,000 from your own policy, even though you paid a separate premium for $100,000 in coverage. Your insurance company gets to subtract the negligent driver’s $50,000 from your $100,000 policy. You’re now shorted by $50,000 on what you deserve on your Ohio personal injury claim. Again, perfectly legal in Ohio.

SIMPLE MATH EXAMPLE NO. 3: 100 + 100 = 200


Explanation:  Assume the negligent driver also had $100,000 in liability coverage, you bought $100,000 in UM/UIM coverage, and your injury claim is worth $200,000.

Result: You can only collect $100,000 from the negligent driver. You cannot collect one penny from your “full coverage” $100,000 UM/UIM benefits because your fine print Ohio auto insurance policy says that you have to have more in UM/UIM coverage than the negligent driver had in liability coverage.

Again, you only get half of what you’re entitled to, and your own insurance company avoids paying anything, despite the fact that you paid a separate premium for $100,000 worth of UM/UIM coverage!

Only an insurance company can get away with this “rip-off math,” legal in Ohio since 1994. Is there any way around all the subtractions in your policy? Not by switching insurance companies. Every insurance company in Ohio has provisions permitting “rip-off math.”


There is only one way to protect yourself and your family and bettering your odds or defeating this fine print math altogether. Buy at least:

(1) $250,000 OR $500,000 worth of UM/UIM coverage, OR (2) a $1 million “umbrella” policy that includes $1 million in UM/UIM coverage.

Your first reaction might be: “I can’t afford $250,000 or $500,000 in UM/UIM!” My guess is that you would be wrong. For less than $150 PER YEAR, you can probably increase your UM/UIM to $250,000 or even $500,000.

That’s less than $13.00 per month. You probably have almost that much in your spare change piggybank.
So let’s see how “insurance company math” works when you buy higher levels of UM/UIM coverage.

SIMPLE MATH 50 + 250 = 300


Explanation: Assume you bought $250,000 in UM/UIM and the negligent driver had $50,000. Assume your claim is worth $200,000.

Result: You can collect $50,000 from the negligent driver’s policy and $150,000 from your own policy, for a total of $200,000. By buying higher amounts of UM/UIM coverage, you’ve now been made whole for all of your losses. And if your claim was worth $250,000, you could collect $50,000 from the negligent driver, and $200,000 from your UM/UIM coverage, for a total of $250,000.

So there IS a way to defeat “insurance company math.” By spending $150, you’ve bought $150,000-$200,000 additional protection in our last examples. If you can’t afford the additional $150 per year, that’s understandable. But now you know how the auto insurance game, and your policy, is rigged. And as you can see, THEIR MATH doesn’t add up to protecting you!

Wednesday, June 6, 2012

"Why Don't You Care About What Happened?"

Our friend and neighbor was involved in an auto accident in Canton recently. This morning I spoke to her husband while walking my awesome "Heinz 57" mixed mutt Shepard. Sarcastically, he asked me why I didn't seem to care what happened to his wife. "We're getting all kinds of letters and DVD's from accident attorneys all over Ohio who are really concerned and want justice for us and we got nothing from you, so I suppose you don't really care about us!"

After we laughed about that, it confirms what I've known to be true for a long time after over twenty years of representing personal injury clients in Ohio: most people are offended by the barrage of solicitation letters they receive after an auto accident. Whether it's a fender bender or a tragedy involving serious injury or death, within days of a crash their mailbox is stuffed like a sausage casing about ready to split. This observation is usually followed by the usual remarks about us being "ambulance chasers" or "parasites" (I could go on with other perjorative phrases but I'll stop there).

Why do firms do this? Because it works well enough to sustain them continuing to do it. And it's cheaper than TV or radio I guess.

So put me in the category of one of those accident attorneys who "don't care" enough to send that stuff. But that's OK. Our phone still rings. And I sleep well at night (except when the dog decides to lap about a half a gallon of water from his special "night" bowl in the bathroom...)

Friday, June 1, 2012


To quote musical icon Neil Young, “You pay for this, but they give you that.” This adage seems to be the recent trend with auto insurance companies who sell policies in Ohio. Lurking in the fine print (that you never see until AFTER you write your premium check) are numerous traps, exclusions and limitations that render your “full coverage” policy worthless after a crash.

Here are a few examples of some recent policies we’ve seen that are infecting the marketplace and leaving injured Ohio auto accident victims on the side of the road.

1. 21st Century Insurance and Its “Opt Out” Underinsured (UIM) Coverage.

Almost all insurance companies sell uninsured motorists’ coverage (known as “UM”) and underinsured motorists’ coverage (“UIM”) together as a package deal. Consider UM and UIM coverage like a set of twins. The “UM” twin will provide coverage for your injuries and losses caused by an “uninsured” motorist. The “UIM” twin will cover your injuries and losses caused by “underinsured” motorists who carry minimal liability insurance. Almost all insurance companies sell UM/UIM coverage together (again, think “twins”). So will 21st Century. But it will also allow you to “opt out” of purchasing underinsured motorists’ coverage in Ohio. A simple example will explain why this is an incredibly stupid option for any insurance company to offer, and why you should avoid it like a hornet’s nest at a picnic.

Let’s say you’ve been hit by an uninsured drunk driver, shattered your ankle, needed surgery with plates and screws, missed five months of work, and racked up $40,000 in medical bills and $10,000 in lost wages.

If you purchased $100,000 in uninsured motorists’ (UM) coverage with your own insurance company, you can make a claim with them for up to $100,000. If your injury claim is worth $100,000, your company has to pay it. That’s why you purchased this coverage.

But what if the drunk driver had state minimum limits of $12,500? This means that the driver was underinsured, meaning he had some insurance but not enough to compensate you for all of your losses. If you purchased 21st Century’s policy and were sold only “uninsured motorists’ coverage,” you’re out of luck. All you can collect is $12,500 from the drunk driver because you “opted out” of UIM coverage. If you had both UM and UIM coverage, you could collect $12,500 from the drunk driver’s insurance company and $87,500 from your own company, for a total of $100,000.

A recent Ohio law change allows insurance companies to separate out UM from UIM coverage. But almost all insurance companies (except 21st Century) still sell it as a package deal, and it makes absolutely no sense to “split the twins” and sell UM but not UIM coverage.

Lesson: Your UIM coverage is just as valuable as your UM coverage. In fact, there are probably more underinsured drivers (with very little liability insurance) than those who are driving uninsured! For not spending $50.00 per year or less on UIM coverage, you are now out $87,500. Do the math – this is a no brainer. Avoid ANY company that tries to sell you UM and not UIM and vice versa!

2. First Acceptance Insurance.

All insurance companies will offer “med pay” coverage which will pay your auto accident medical bills up to the limits of your coverage, whether its $1,000 or $5,000 or whatever amount you purchase. Here’s how it normally works with almost every company but First Acceptance: you simply turn in the bill to your insurance company and they will pay it as long as it’s related to the crash.

Not First Acceptance. Their med pay coverage is a “reimbursement only” policy. Definition: you, as the injured person, have to pay for the bill out of your own pocket first and then First Acceptance will reimburse you!

Here’s the fallacy of this “coverage”: many folks who purchase First Acceptance policies are financially strapped to begin with. Most can’t afford to shell out $1,000 or $5,000 to pay medical bills out of their pocket.

Therefore, despite paying a separate premium for this coverage, you can’t access it unless you first pay your bills out of your own pocket. So what good is this coverage? Not much at all.

And there’s one other item of fine print in First Acceptance’s med pay “coverage”: there’s NO coverage for chiropractic care. Almost all other insurance companies’ medical payments coverage will pay for chiropractic care.

3. Conclusion.

Here’s the common denominator of these policies: purchasers of insurance do not know what questions to ask, and many are sold over the phone. As you can see, how these policies really work in reality can be complicated stuff. Unfortunately, insurance is sold on one guiding principle: price. Just turn on your TV and you’ll hear all about “saving you 15%,” “keeping you legal for less,” and other “discounts.”

The old saying that “you get what you pay for” really does not fit here. The real problem with buying car insurance is that you really don’t know what you’re buying (or better yet what you’ve been sold) until after you’ve been put in the ditch by an irresponsible driver.

Tuesday, May 22, 2012

Can A Text Messager Be Liable For Sending Texts To Driver?

Nobody would argue that people who text and drive and cause a collision are negligent and should be held accountable for the injuries they cause. In fact, I have argued that to text and drive may well be reckless conduct that could warrant punitive damages against the offending driver.

But should the person who is texting the driver also be held legally liable if the "texter" knows the "textee" is operating the vehicle? A New Jersey lawsuit will examine this issue.  My guess is that this lawsuit will be thrown out and it should be, in my opinion, despite my sympathy for the motorcyclist and passenger who both lost a leg as a result of the crash.

Every driver under Ohio law and the law of every other state is obligated to use "reasonable care" under the circumstances. If you don't use reasonable care while driving, you are negligent. But you are legally liable for harm only if that negligence directly causes injury. Certainly, it is foreseeable that texting while driving will increase the liklihood of a crash because of the distracting nature of texting.

I'm sure the victims' attorney will argue that it was equally foreseeable to the texter that to continue to send messages to a driver also increases the same liklihood of a crash. But here's where the parallel ends.  What distinguishes the texter from the driver in this case is the element of control, or better yet the lack of control over the vehicle or the driver. Nothing prohibits the driver from turning off the damn phone, ignoring the text, or pulling over to respond. By consciously choosing to ignore safety and continuing to respond to messages while driving, it is the driver's actions that have directly caused the injuries, rather than the texter's.

At least that is how I see it. Sometimes you gotta "call em as you see em," even if it means the insurance companies will prevail on this one.  

Monday, May 21, 2012

The Vexing Problem Of Retained Instruments After Surgery

A medical technology company is developing radio frequency identification technology to assist surgical teams in detecting surgical sponges. At first blush this is not breaking news, but it illustrates a much bigger reality about our medical system.

For years, surgical items like sponges, towels, clamps, foreceps, gauze, and countless other items have been left in patients. Although estimates of this occuring varies, the larger point is obvious: despite all the best hospital protocols, rules, and policies requiring accurate counting of surgical instruments, "stuff" left inside patients' bodies continues to happen, as evidenced by continuing efforts to develop technology to overcome human error. But as safety technology is evolving, the obvious question is: WHY does this continue to happen?

After all, aren't hospitals accredited by organizations who scrutinze their patient safety? Of course. And don't they grant privileges to only the best surgeons who are vetted by the hospital credentialing committees? Presumeably. So how do retained surgical objects continue to happen in "Groundhog Day" fashion and fuel the ongoing need for new technological breakthroughs?

Simple. The practice of medicine is a volume business. Time is money, and patients are frequently a cog in a wheel of a continuing production schedule where medical decisions are often influenced by issues extraneous to what is best for the patient---like having the time to count objects. This is no great revelation to patients. As an analogy, just ask anyone who experienced a loved one discharged too early because of "reimbursement issues," despite what they were told by the medical team.  When something as simple as counting what goes in and what leaves the body is subject to repeated error, it is symptomatic of a larger problem.

We hear over and over that we have the best medical delivery system in the world and this is largely true. But leaving anything behind is 100% preventable and should never happen--no exceptions. In a time where politicians and the medical profession decries medical malpractice lawsuits, it is time to recognize that cases involving retained surgical objects prove an unassailable truth: a major cause of malpractice lawsuits is malpractice. And the easiest way to prevent these lawsuits is to decrease malpractice.

Monday, May 7, 2012

Negotiating With The Adjuster On Your Personal Injury Claim--Don't Do This

     It's one of many traps you can fall into when dealing with an insurance company on your own after an auto acccident. But this one is particularly easy to set and spring on you.


Potential client calls. Her statute of limitations is about to expire in 4 days. She's been dealing with the at fault driver's insurance company for almost two years now. After considerable delay, she finally speaks with the adjuster. The adjuster asks the magic question, the one learned at adjuster training 101: "What is it going to take to settle your case?"


In fact, it is more than magic--it is the PERFECT question to ask an unsuspecting auto accident victim because it is a win-win for the adjuster for two reasons. First, the adjuster is getting a commitment from you without ever revealing the insurance company's hand. Second, no matter what your response is, 99.99% of the time their response will be: "We can't pay that kind of money, so what are you REALLY looking at to resolve your auto claim?" At which point, most folks will reveal exactly what that figure is...

Bottom line: in the course of a few minutes, you've bid against yourself and revealed your bottom line and the adjuster hasn't given you anything in return. It's the equivalent of taking a hammer and whacking yourself with it a couple times. After going round and round with the adjuster, the potential client finally blurted out a money demand that was artificially high but at least gave her enough room to negotiate. Thankfully, she did not reveal her bottom line. But she got nowhere near what she should have been offered, and now I'll be handling her claim through a lawsuit.

But others fare less well. Sometimes the injured person makes so many negotiating mistakes that I can't unspring the trap.

Thursday, April 19, 2012

Who Is Responsible For A Sponge Or Towel Left In A Patient After Surgery--The Surgeon Or The Hospital?

Answer: it depends, and sometimes both are legally liable. Every hospital has written procedures and protocols for the correct counting and inventory of any products utilized during surgery like sponges, gauze, towels, forceps, clamps, needles--you name it. In fact, one or more members of the surgical team usually documents at the end of the procedure that "all sponge/needle counts are correct."

Despite this "documentation," hundreds if not thousands of "foreign objects" are left in patients every year in this country. In a case I co-counseled a few years ago, a surgeon left a large towel inside a patient's chest cavity and, sure enough, the count of objects used during surgery was "correct" in the surgery record.

If the surgeon is an employee of the hospital, the hospital is liable anyway and it really doesn't matter if the surgeon or surgical team was responsible for dropping the ball (or perhaps dropping the sponge is a more accurate phrase).

But what if the surgeon is not employed by the hospital? As pointed out here, some states impose on the surgeon an independent legal duty to verify a correct count at the end of the procedure. If this is the case, both the surgeon and the hospital can be jointly liable for negligence.

In other states, the surgeon is considered the "captain of the ship" and can under certain circumstances be held solely liable. In Ohio, one or both can be held liable, and this makes sense given the fact that hospitals can and should have procedures in place for their surgical team-employees to mandate an accurate count.

But one thing is clear: when something like this happens, you can expect some finger pointing between the surgical team and the surgeon, with each claiming the other messed up the count. It reminds me of an old Bill Cosby comedy album (yes, an album and not a CD, so I'm dating myself) I used to own where he joked that he had re-named his kids "I don't know" and "not me" because that was their standard response when grilled by him after something got broken....

Thursday, April 12, 2012

Consumers Turning To Social Media To Make Companies Listen

I love my clients--they come up with some of the greatest ideas! Just recently, I met with a really nice guy who was involved in a collision with a company truck owned by a "national telecommunications company" (we'll leave their name out of it). He's a disabled vet with a rebuilt knee that took a shrapnel hit in Vietnam.

He drives a large pickup because it is much easier on his crippled knee to get in and out of a truck or SUV than a regular passenger car. His truck is seriously mangled in the crash and it needs to be repaired. What's worse, he and his siblings are taking care of their gravely ill mother with 24/7 care at her home, so he needs a vehicle for his shift.

Enter the "national telecommunications company's" insurance company.

Long story short, there is considerable delay in getting his car appraised. After the appraisal, the adjuster refuses his request for a pickup truck or SUV as a rental vehicle. He is told "I see no need for allowing this" or words to that effect and is offered a small passenger car. He calls the "national telecommunications company" and relays this to them, and is promised that they'll "look into it," but after almost one month the truck is still not fixed and he's still without a car that suits his specific medical needs.

What he does next is brilliant.

He calls both the "national telecommunications company" and the insurance company and tells them that unless he gets the pickup truck or SUV he's been asking for, he is going to go on YouTube and post a video detailing how both companies treated a disabled war veteran after making a modest request for a different vehicle in an accident that was not his fault.

One hour later, the phone rings. It' guessed it...the rental car company. "We have an SUV for you, sir."

What's the message here? Social media, with the power of a few keystrokes or a smartphone video camera, can be a real equalizer when you're working your way through an endless maze of red tape, rigid "policies and procedures," and folks who may not be inclined to care about your plight or help you. I'm not suggesting that hopping online and posting a video or scathing comments is the answer to every corporate dead end you run into. You have to pick and choose your battles, and you have to be smart about it. You could easily cross the line and get yourself in a legal mess if you're not careful (you might want to brush up on your state's defamation and libel laws before turning on any video camera).

It used to be that you wrote a scathing letter and that was about it. Corporate America has always had quite a few weapons at its disposal, some legit and some sketchy, to deal with complaints. But with the advent of Twitter, Facebook, and numerous consumer complaint websites, one thing scares the hell out of them, and it's something they can't really control at the home office: VIRAL COMPLAINTS.

Thanks to social media, sometimes the little guys and gals can occasionally claim "scoreboard" too.

Monday, April 9, 2012

What Happens To Your Ohio Auto Claim If You Are Partially At Fault In The Crash?

"The adjuster claims I am partially at fault in the accident and he won't offer me full value on my (car)(injury claim)." I occasionally hear this when clients call me after hanging up the phone with the adjuster.


"Contributory" or "comparative" negligence in Ohio are terms that mean the same thing: that you contributed to the collision due to your own negligence. Typical scenario: someone ran a stop sign and clobbered you and there is some evidence to suggest that you may have been speeding (more about that below). Some simple examples will help explain this concept and how it affects your claim.

Let's assume your $10,000 car was totalled in an accident and you were 20% at fault in the collision. In Ohio, the insurance company for the driver who was 80% responsible would owe you only $8,000 ( the value of your $10,000 car minus your 20% fault in the collision). If you and the other driver were deemed 50% responsible, the insurer for the other driver would owe you $5,000.

But if you were deemed 51% at fault, the insurer for the other driver would owe you nothing under Ohio law. Bottom line: your claim can be reduced by the percentage portion of your own contributory negligence, and it can be eliminated altogether if your negligence exceeds 50%.


Because of Ohio's comparative negligence laws, it behooves you to carry collision insurance with your own insurance company. The reason is simple: IT'S NO FAULT COVERAGE AND NOT SUBJECT TO "COMPARATIVE" NEGLIGENCE!! So, in that 80/20% collision I referred to above (where you were 20% negligent), you can make a claim against your own insurance's collision coverage for the entire value of your $10,000 car. They'll pay you 10K, and get back 8K from the at fault party's insurance company (this is known as subrogation).

But if you don't have collision coverage, you are at the mercy of the 80% at fault driver's insurance company's argument that they only owe you $8,000 on your totalled car.


The same rules apply to your personal injury claim in Ohio. How are these percentages determined? It can be as arbitrary and unscientific as an adjuster stating "we believe your client was 25% negligent for not wearing his seatbelt." This is not necessarily true under Ohio law as there are many exceptions to this rule, but it doesn't stop an insurance company from arguing it to an injured person "going it alone" without an attorney who is unaware of the limitations of R.C. 4513.263(F)(2)--or worse yet a clueless attorney representing an injured client who is unaware of this law.

Another common tactic is to claim that the injured person was speeding and was therefore contributorily negligent. In many situations, speed has no direct bearing on the cause of a collision. Example: you're going 58 mph in a 55 mph zone and someone blows a red light and T-bones you. That collision would have happened if you were going 55 or 57 or 58 mph, so the fact that you were 3 miles over the limit is irrelevant.

But none of this stops insurance companies from occasionally making these arguments in an effort to save a few thousand bucks. The key is to know how to smoke out any suspect contributory negligence arguments from the occasional legitimate ones.

Wednesday, April 4, 2012

Chiropractors Calling After An Auto Accident--Avoid The Machine

Machines can be dangerous. If you've been in an auto accident, you'll soon be introduced to a machine of sorts.

Within a day or two of a crash, the phone rings. It's usually from some innocently sounding "help center" or "injury hot line." They get your name from accident reports, which are public records. Many times these calls are from out of state phone numbers. Why, you ask? Because many states prohibit chiropractors (and attorneys) from calling car crash victims directly (hence the out of state "wellness center" to get around this "technicality").

The "pitch" takes various forms:

"The insurance company wanted me to check and see if you were hurt."

"I'm calling to check on your injuries" without identifying who they are. If pressed, they identify some "help" or "wellness" center.

If you deny being hurt in the collision, a standard scripted response might be "we need to have that medically documented and we can refer you to a provider in your area for a free exam."

This happened to a client recently. He responded to such a call and took his son in with him (both were involved in the accident). First initial visit: over $500 for each of them due to countless x-rays and other "modalities." Suspicious, he left that office, called me, and eventually went to his family doctor and got hooked up with a reputable chiropractor of his choosing (there are many out there, by the way).

But before he abandonned the previous chiropractor's office, he signed a paper agreeing that any settlement money is now the chiropractor's property to the extent of the outstanding bill.

And, the fired chiropractor is now refusing to turn over all the x-ray reports to the new chiropractor.

Look, insurance companies know all about these business practices and scrutinize the hell out of them and the attorneys who routinely "pop up" time and time again with the same chiropractic office on countless auto accident claims.

In this maze of confusion, here's a big clue as to what to do after an accident. If they're coming after you within just a few days after an accident, as opposed to you doing your own homework, it's a huge red flag. Avoid the callers from help centers and the fancy DVD's and slick mail brochures that practically tilt your mailbox. Otherwise, you're about to step into a well orchestrated, sophisticated machine that I referred to above. In my opinion, it's a machine that was not designed and speced on what's in your best interests.

Tuesday, March 20, 2012

Medical Malpractice Tort Reform Opponents Make For Strange Bedfellows

Congress is currently debating (again, for the umpteenth time) a bill that would "federalize" medical malpractice law and impose a one size fits all cap of $250,000 for patients who are injured or maimed due to a physician's or hospital's negligence. We trial lawyers have always opposed caps because they shred the 7th Amendment of The U.S. Constitution's right to trial by jury by stripping the jury's right to determine malpractice victims' damages and losses on a case by case basis. What's more, they violate an injured patient's right to due process of law under the 14th Amendment.

But these stalwarts of The Constitution are mere "technicalities" for most Republicans pushing for the bill at the bidding of the medical and insurance industry and The Chamber Of Commerce (most Democrats oppose it). These pols and their lobbying groups apparently liken The Constitution to a trip to the buffet, where they are free to "pick" the constitutional entrees they like, i.e. the 2nd Amendment right to bear arms (think steak or prime rib) and bypass some of those nasty side dishes like trial by jury and due process (think lima beans, or the cottage cheese at the salad station that you discover was inadvertantly infused with purple beet juice--ick).

That's why it was suprising and somewhat refreshing to learn that many conservatives are vehemently opposing this legislation. Who might you ask? No other than many Tea Party groups and The Heritage Foundation.

This from The Heritage Foundation:

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

And this from the Tea Party Nation founder Judson Phillips:

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Almost three years ago I argued that any attempt to nationalize medical malpractice laws not only wouldn't lower health care costs, but was blatant socialism.

I'm pretty sure that socialism and "a la carte constitutionalism" are ideas these conservative groups could probably relate to. They deserve credit for pointing out the incongruity of the mixed message of rejecting ObamaCare and "federalizing" malpractice laws at the same time.

Tuesday, March 6, 2012

Unnecessary Prostate Removal Surgery Proves The Folly Of "Evidence Based Medicine" Malpractice Immunity

"Evidence based medicine" is the newest shiny object on the mantle of the medical/insurance industry's never ending lobbying effort to eventually kill all medical malpractice lawsuits in this country. The premise: if doctors follow recognized guidelines or protocols in treating a patient, they should be immune from a lawsuit if the patient suffers medical harm.

Like other tort reform buzzwords such as "defensive medicine," it passes the "bumper sticker worthy" test, meaning it is overly simplistic and can be repeated over and over for maximum effect with an unsuspecting public and friendly lawmakers. But just how does "evidence based medicine immunity" square with the poor guy who had cancer surgery to remove his prostate when it turned out he didn't have cancer after all because his biopsy results got switched with another patient's?

This case was so secretive that the patient's name, the clinic, the lab, the doctors, and even the venue (the location where the malpractice and lawsuit took place) were confidential. But here's what happened to poor "George" as we'll call him.

After having a biopsy at a clinic to confirm or rule out prostate cancer, George's sample was sent to a pathology lab. Here's what happened after that:

The lab then determined the patient had prostate cancer and the patient underwent a robotic prostatectomy. But a sample taken from him after surgery showed he had no cancer at all. It was discovered that the original tissue sample had been switched with that of another patient who thought he was cancer-free. Exactly how the switch took place, however, was never cleared up.

After he sued both the clinic and the lab for wrongfully removing his prostate, things got more interesting in the lawsuit:

...both the clinic and the lab denied responsibility for the error. A nurse at the clinic insisted she labeled the sample correctly and followed protocol to make sure the requisition form matched the specimen. The pathologist at the lab reported matching the name on the requisition form with the name on the specimen, and lab technicians and pathologists followed all protocols during analysis.

Therein lies the problem with an "evidence based medicine" defense. How can everybody in the medical chain be following all protocols and this poor guy has unnecessary surgery for a non-cancerous prostate gland that's been removed as a result?

Evidence based medicine isn't so black and white after all when real world medical errors like this happen. At the end of the day, "best practices" and "protocols" are nothing more than aspirational pieces of paper. They're not worth squat if the team can't execute the playbook, and it's even worse when medical providers swear under oath that they followed the playbook, even in the face of an obvious medical mistake proving otherwise.

Sunday, March 4, 2012

What Does "100/300,000" Auto Coverage Mean?

Not what you think it probably means. In fact, it is kind of misleading.

1. 100/300 Liability Coverage

This means your policy will pay up to $100,000 to ANY ONE PERSON who you injure in a collision that is your fault. If you seriously injure that person and he or she has a claim for injuries greater than $100,000 (say $300,000 for example), your liability insurance coverage will only pay $100,000. You're on the hook out of your pocketbook and assets for the remaining $200,000. So much for the "300" part. Your policy looks a bit thin now.

When does the "$300,000" part kick in? If you negligently injure more than one person in the same car accident. Example: your driving negligence injures 3 occupants. Assume that:

Occupant No 1 has a claim for $300,000;

Occupant No. 2 has a claim for $100,000;

Occupant No. 3 has a claim for $50,000

Result? The most your insurance company will pay TOTAL is $300,000. Occupant No 1 will probably not get all $300,000, and as a result, occupants 2 and 3 may not receive the total value of their claims either. They may all have to share "pro rata" or proportionally in the division of the $300,000 total proceeds available.
Again, so much for your policy protecting you. Your personal assets are exposed in this example too since the total of all occupants' claims ($450,000) exceeds your liability insurance limits by $150,000.

2. 100/300 Uninsured and Underinsured (UM/UIM) Motorists' Coverage

This is the MOST IMPORTANT PART OF YOUR INSURANCE POLICY. Why? Because it protects YOU AND YOUR FAMILY if an uninsured driver (he's got no insurance) or an underinsured driver (he's got minimal or low liability limits) creams you in a crash. Yet, the same "sleight of hand" rules apply.

The $100,000 portion of your UM/UIM is the most your insurance company will pay to any one person insured under your policy. If you're injured by an uninsured drunk driver and have a claim worth $200,000, your insurance company owes you $100,000. By purchasing this coverage, you only get %50 of what your claim is worth.

The $300,000 portion of your coverage? Your getting the picture here, right? You got it: it's the most your company will pay no matter how many family members are injured. If some underinsured driver goes left of center and seriously injures all four members of your family, the most they will pay is $300,000 total, and no more than $100,000 to any individual family member.

When this coverage is fully explained, it's easy to see why "100/300" coverage is so lousy. Yet, we continue to see this coverage over and over, whether it's the negligent driver who injures our clients, or our clients with their own policies.

Although "100/300" coverage is fairly common, it has become outdated like the mullet, untied high top basketball shoes, Lover Boy (which I never listened to by the way) and Members Only jackets (I confess to briefly owning one of these). In any serious crash, a standard $100,000 recovery can be quickly eaten away your health insurance company's "subrogation" rights. If your health insurance company paid $70,000 for your medical bills, in some instances it can get every penny back.

Unfortunately, most agents don't realize this when they convince you to buy a "standard" 100/300 policy. And you don't realize any of this stuff until it's too late.

Hey insurance agents: 1982 is calling. It wants its "100/300" policy back.

Wednesday, February 22, 2012

Sugarland Lawyers: You Fans Assumed The Risk Of Injury So It's Your Fault

Nice to know that if you go to a concert and the stage collapses it's your fault as a fan, eh? This, according to lawyers for the band Sugarland, is one of their defenses in an official answer to numerous lawsuits filed against the band and other companies arising out of the August 13, 2011 tragedy that killed seven and injured fifty eight:

Calling the powerful winds that toppled the stage on Aug. 13 an "act of God," Sugarland's attorneys said fair officials and Mid-America Sound Corp. were responsible for the stage setup, and that the fans voluntarily assumed risk by attending the show.

Some or all of the plaintiffs' claimed injuries resulted from their own fault," according to the response. Sugarland attorney James H. Milstone would not elaborate Tuesday on whether that statement included those killed as well as the injured

This "defense" is known as "assumption of the risk." It is usually reserved for activities that are by nature dangerous or hazardous, like skydiving, ziplining, parasailing--you get the picture. And even then, sometimes the waiver you sign informing you that you are assuming the risk of injury does not necessarily excuse the host from liability if negligent in some manner.

That aside, I am reasonably sure that watching a concert in a pavillion at a state fair (with the possible exception of the mosh pit) is not by nature a hazardous activity where you "assume the risk" of a tragedy like this.

That is, unless, you're an insurance company lawyer, where every "kitchen sink" legal defense is thrown into the mix, no matter how stupid or inane. And this defense is inane. It will go nowhere and every lawyer involved in this ligigation knows it.

Ohio personal injury attorneys like me see this defense raised every day in run of the mill cases, even in clear liability situations, like when our client is rear ended ("the plaintiff assumed the risk of all injuries in the collision"). They allege it, and it dies on the vine without so much as a whimper. No big deal.

But I've never understood why insurance companies make allegations like this in high publicity lawsuits like these ones. All it does is make a bad PR situation worse. Now the band Sugarland has to respond to this issue when my guess is that they probably knew nothing of what the official lawsuit "defenses" would be. It's like asking for more egg on your face, and I can also guess it's not helping innocent victims of this tragedy heal.

Thursday, February 16, 2012

Ohio Supreme Court Decision Protects Drunk Drivers And Other Miscreants In Lawsuits

The world is full of miscreants. Hopefully most of us will not cross their paths, but it's a long (and growing) list: pharmaceutical companies and product manufacturers who market and sell dangerous drugs and products and who are slow to recall them even though they know they are harmful. Nursing homes that injure or kill elderly patients and then alter records in an effort to bury their mistakes. Trucking companies who hire incompetent drivers with extensive criminal or accident histories in order to put a body in an idle truck. More commonly, every day drunk, impaired, and distracted drivers maim or kill innocent Ohioans.

Every one of these bad actors and their insurance companies were just cut a huge break by our Ohio Supreme Court with a recent decision. This week, The Ohio Supreme Court upheld a "tort reform" law passed by The Ohio Legislature in 2005 that prohibits introducing evidence of a defendant's willful or bad conduct during the initial phase of a lawsuit. How does this decision work in the real world and why should you care?

Imagine being creamed by a drunk driver. He puts you in the hospital, and you're left with long term injuries, surgeries, therapy lasting months or years, lost wages, and a life that is now not normal. After getting jerked around for months on your own by his insurance company, they make you an insulting offer.

You hire a competent personal injury lawyer who files a lawsuit on your behalf. The insurance company lawyer files an answer denying that their driver was drunk. Time and money is spent in litigation proving that the driver was in fact drunk. The insurance company continues to take a hard line stand, and the case goes to trial.

On the day of trial, the insurance company lawyer admits the driver was at fault but makes no mention of the fact that his client was drunk. Common sense, logic, and simple fairness would dictate that you can introduce evidence of the driver's intoxication for the jury's consideration in determining your damages, right?

Wrong. Not in Ohio. Not any more. According to this recent decision, your trial is now chopped up or "bifurcated" into two parts. In the first phase, the jury hears no evidence of the driver's intoxication. For all the jury knows, the driver was a responsible citizen heading home from church or the grocery store. They're not allowed to hear that the driver had consumed 8 beers and had bought another 12 pack when he left the store. And they're not shown the police videotape of him staggering and falling down on the berm of the road, or the toxicology report showing that he was two times over the legal limit.

After the jury determines your damages in the now sterile and non-transparent initial phase of the trial, only then can you introduce evidence of his intoxication, in order to determine "punitive" damages against him.

This is a HUGE victory for insurance companies who pushed for this law, as I wrote about here. Even more egregious, it gives a big break to drunk drivers, who can now sit at trial smugly, knowing that their awful choice to drive drunk will never see the light of day for most of the trial.

Imagine being a drunk driving victim and sitting in trial listening to an untrue and sterile version of the facts of your case. It's a slap in the face to all drunk driving victims, and it's no wonder I hear people frequently rail that our justice system makes no sense.

And this law and decision makes no sense. The Supreme Court passed on an opportunity to strike the law as unconstitutional as in conflict with Pre-2005 Rules Of Procedure that gave judges discretion to simply allow one trial and let all the evidence in at once, including evidence of intoxication.

Instead, The Supreme Court rubber stamped the law and essentially sent the message that "whatever The Ohio Legislature passes is fine with us." So much for The Constitution. Did they intend to protect these bad actors with this ruling? No. But this is the practical reality of their decision.

So how's all this "tort reform" working for you now that our system has seen fit to give a legal break to drunk drivers, medical institutions that alter records, a lot of other bad actors, and their insurance companies' bottom lines? Sorry but this one is hard to swallow. So much for fairness and a level playing field when you walk into court.

In the near future, I'll be getting a call from another drunk driving victim. Perhaps someone who was in favor of "tort reform" and "cracking down on all those frivolous lawsuits." And then I will try to explain this gem to them. And the reaction will be typical: "Well, that's not fair. My life has been changed by a drunk driver and these laws give a break to the drunk who hit me? How is that justice?"

My response is always the same. "It's not, but this is what you voted for." You know the old saying "Be careful what you wish for--you might just get it?" Well, you just got it.

Wednesday, February 1, 2012

The Insurance Company's New "Doctor" Denying Payment Of Your Auto Accident Medical Bills

My client called, exasperated, and told me: "my auto insurance company called and told me they will not pay any of my auto accident bills after six weeks." Mind you, this was no fender bender. This was a broadside collision. The client was hit on the driver's side door and dragged through an intersection. The client had purchased $5000 of medical payments coverage with his "full coverage" auto policy and had paid a separate premium for that coverage.

But it was no doctor on the phone telling the client he should be "all better" after 6 weeks. It was an adjuster. She was not attempting to cut off the payment of bills to be mean or spiteful. Rather, it was simply their "company policy."

How can an insurance company magically devine that anyone in a crash who hasn't broken any bones should be fully recovered after 6 weeks? Simple. Spend millions on sophisticated software programs that input certain diagnosis "codes" and feed them into the fancy software algorithims. Voila. Out comes "data" that tells the adjuster how long their own insured should be treating with their medical providers for their injuries.

Why did many auto insurance companies sign on for sophisticated medical auditing software? Think $$$$. By creating and imposing artificial limits on medical payments coverage, they can save $350 or $700 or $1129 or whatever per claim. Now multiply that by millions of claims for medical payments and you get the point.

Never mind the fact that each person is different when it comes to recovering from muscle, ligament, tendon, and other "soft tissue" injuries. One person may not need even four weeks of treatment or therapy. Others, because of their health history, may need 10 or 12 or 14 weeks of treatment. One would think that someone--oh, I don't know, perhaps a PHYSICIAN comes to mind--should have a say so, maybe, in what treatment is necessary for that person's recovery?

That's what customarily happened before all the algorithims. Welcome to the new normal. Thankfully, many of these same companies will back down from their "policies" and re-evaluate their original position, but not without a fight from me and a threat to sue them for insurance "bad faith" in unreasonably delaying or denying payment of my client's bills.

They should give their computer program a name. Allstate's is called Colussus. I would propose Dr. Al. Al Gorithim.

Saturday, January 21, 2012

Small Business Owners And Consumers: Beware Of The "Self Renewing" Contract

Mark Twain once said that "a cat, having sat upon a hot stove lid, will not sit upon a hot stove lid again. But he won't sit upon a cold stove lid, either." A "self renewing" contract is like the proverbial hot stove waiting to burn you when you sign up for any service contract, whether you're a consumer or a small business owner.

Definition: a contract provision that AUTOMATICALLY renews for another term unless you give notice (usually written) weeks or even months in advance. It's one of the most sneaky and one sided provisions you'll see in a standard contract, usually buried in the middle of the fine print.

Here's an example of a "pants on fire" self-renewing contract. Say you own a small restaurant or body shop. You sign a uniform rental contract with a large rental company for a two year term. Unbeknownst to you, the contract has a renewal clause for a second term of 48 months, if you do not give written notice 6 months prior to end of first term (or 18 months)! By not knowing about this little dirty bomb in your contract, or even if you're aware of it but forget to calendar it and send a timely notice of cancellation, you might be without recourse. Result: you just unwittingly "signed up" for another two year term. At a minumum, you'll have to "lawyer up" to see if the contract is enforceable (we welcome the work, of course, but the whole point of this post is to teach you how to avoid us if you can!).

Imagine having to pay for a service you no longer want for 2 more years because of this nonsense. And it is nonsense for businesses and service providers to sneak these provisions into a contract and hope you are ignorant or asleep. Unfortunately, they are becoming more prevalent, even with standard consumer or residential contracts like a home security service, for example. I would seriously consider not doing business with any group that includes such a provision in their contract or insists on enforcing it if you object to it before signing.

This kind of crap is becoming the norm. Be on the watch for it. In this current climate of these clauses, and even one sided arbitration clauses buried in form contracts," now more than ever the burden is being shifted to you, the consumer, to presume that the stove lid is hot.

Tuesday, January 17, 2012

Some Good Reasons To NEVER Sign Nursing Home Papers For A Loved One At The Nursing Home

A colleague recently reported a situation where a family member (a son) signed numerous papers at the nursing home in order to begin the process of admitting his mother to the home. The son had a "power of attorney" (POA) to sign the admission papers on his mother's behalf.

Buried in the stack of "standard paperwork" was a "guarantee of payment" for his Mom's nursing home bill. The problem: he signed so many papers that day that he failed to sign it as POA for his mom. Instead, he inadvertantly signed it in his own name. You can guess what happens from here: Mom dies, there is an outstanding nursing home bill, and now the nursing home is threatening to sue him unless he pays the outstanding balance for his Mom's care!!


Let's set aside the legalities of enforcing this "guarantee of payment" for the moment. The real problem here is the dizzying amount of paperwork that nursing homes and assisted living centers require the resident or legal representative to sign before admission. Some of it is standard, but there are many other documents that are one sided, and even strip the resident of important legal rights.

Some of the standard paperwork includes:

Medicare Secondary Payor Questionnaires;

HIPAA Privacy Notices;

Resident Handbook;

Facility Admission Agreement; and

Numerous other financial papers and documents regarding payment.

In a recent Ohio case I litigated, the "Resident's Handbook" was twenty pages long, and the "Facility Admission Agreement" was a whopping fifty pages! Now let's put all this paperwork into context. Mom or Dad are going to the nursing home for a reason: they're either sick or frail and traditional treatment or livng at home is no longer an option. The decision to place a loved one in a home or center can be an emotionally wrenching one. Frequently, time is of the essence because of arbitrary hospital discharge rules or the limited availibility of nursing home beds.

So in the rush to get Mom or Dad in a nursing home (if you're even lucky enough to have the luxury to investigate more than one home), what exactly are you signing? In the case I handled, buried in the "Facility Admission Agreement was a "Limitation Of Liability Agreement." In this "agreement," the resident agreed to give up the right to sue in court if injured, and also agreed to waive the right to a jury trial. Also included was a mandatory arbitration agreement, and here's the real kicker: the resident agreed to a compensation cap of $100,000 for any injuries, and a waiver of any potential punitive damages.

The resident in this case was injured by nurses aides who eventually were charged with criminal patient neglect. We ignored the "agreement" and sued anyway and were able to resolve the case (note, however, that The Ohio Supreme Court has upheld these one sided "agreements" under certain circumstances).

The family member who signed all these papers gave a familiar answer:

"We were asked to sign all these papers and nobody went over them with us.

"We were told we had to sign them right away so Dad could be admitted."

"They had me sign so many papers I have no idea what I signed."

This is frequently the "business model" nursing homes employ to get residents into beds AND chop down the resident's legal rights. It is a model that takes advantage of vulnerable families making painful and often sad decisions.


There is one sure way to protect yourself from all this mess. Ask the facility for some time to take the paperwork home and digest all the information. Twenty four to forty eight hours time to read paperwork, often in excess of a hundred pages, without the pressure of "sign this as soon as possible"--is a reasonable request. After all, if the nursing home/assisted living center is above board, what should they have to hide? If they won't allow this simple request, it may be a sign of things to come: that they value their "business model" above all else--including patient care.

Regarding the "guarantee of payment" the son signed, it is of doubtful validity in Ohio, and I do not think the nursing home will be able to enforce it. But he is now probably looking at hiring an attorney to defend him in a lawsuit if the nursing home sues him for the debt. All the more reason to proceed methodically and take the time to know what your signing...or giving away.