Monday, July 7, 2014

Will You Get Full Compensation In Your Ohio Personal Injury Case For Your Permanent Injury?

Before 2005, yes. After 2005, maybe not. Why was 2005 a watershed year on this issue?

Two words: "tort reform." What's that, you say? In 2005, The Ohio Legislature passed laws or "caps on damages" to limit what you can recover in personal injury lawsuits, commonly known as "tort reform." How do these limits work? An example hopefully brings this to light.

Let's say an impaired or fatigued truck driver is in violation of the federal motor carrier hours of service rules (the 14-hour driving window limit, 11-hour driving limit, or the 60-hour/7-day and 70-hour/8-day duty limits), and he falls asleep at the wheel, crashing his 82,000 rig into the back of your car.

The good news is that you survived. The bad news is that you broke 11 ribs and your leg, in the form of a tibia-fibula fracture. You also sustained a closed head injury. You spent a month in the hospital, including placement of a metal rod in your leg in an effort to reconstruct what's left of your tibia and fibula.

You missed a year of work, lost $50,000 in wages, and incurred $200,000 in medical bills. After a year of therapy, you no longer walk with a profound limp, but you have severe pain in your leg daily with activity. Your doctor has told you that arthritis has set in and your leg function and pain is never going to improve. Your leg is so bad that you can't even exercise with it or walk on it for any lengthy period of time. All your hobbies--golf, hiking, bicycling--gone. Finished.

And you're only 40, so you have at least 30-40 more years left on a leg that is permanently injured and will never be the same.

Now let's hit the re-wind button to before 2005. Before tort reform caps were passed, you would have been entitled to recover for the permanent injuries and limitations to your leg as part of your pain and suffering with no limitations. If, for example, a jury valued your past and future pain and suffering for the rest of your life at $500,000, that is what you would have received.

After 2005, The Ohio Legislature arbitrarily capped your compensation for pain and suffering to a sliding scale of $250,000 not to exceed $350,000 maximum for ANY permanent injury unless you meet one of 3 exceptions to the cap:

  • loss of a "bodily organ system";
  • a permanent and substantial physical deformity; or
  • inability to independently care for one's self in every day activities of daily living.

In the example above, the only possible exception to the cap that MIGHT apply to your bum leg is the "permanent and substantial physical deformity." But here's what insurance companies in personal injury cases are at  mediation and before judges: that injuries like these do not rise to the level of "permanent and substantial physical deformities," and therefore the caps/limits apply.

Ultimately, a jury would have to decide whether any permanent injury meets any of the exceptions to the $250-350,000 caps on pain and suffering. But insurance companies are using the caps/limits as leverage for making lesser offers than they would otherwise be making if the Legislature in 2005 didn't hand them this uncalled for club to beat over the heads of legitimately injured Ohioans.

Why did The Ohio Legislature pass these caps? Simple. The business community, spearheaded by The Chamber of Commerce, asked for them. A simple case of ask and ye shall receive. The caps were "sold" to the public as bringing "predictability" to the legal system to keep business costs down AND create jobs, like a magic elixir. That's right--limiting what you can recover for a bum leg at the hands of an impaired or fatigued driver was supposed to create Ohio jobs...

Somebody queue in the cartoon laugh track on that one......

No comments: