The Nicodemo & Wilson Bull's-Eye Blog

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

2012-01-21T14:36:00.006-05:00

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.

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

2012-01-17T14:58:00.007-05:00

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!!

WHAT PAPERS ARE YOU EXPECTED TO SIGN FOR ADMISSION TO A NURSING HOME OR ASSISTED LIVING CENTER?

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.

PROTECTING YOUR LOVED ONE (AND POSSIBLY YOURSELF)IN THE MAZE OF PAPERWORK

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.

A Great Trial Argument To Make When They Attack Your "Non-Academic" Expert

2012-01-12T21:25:00.005-05:00

Occasionally you run across an expert who has tons of real world experience and technical experience but a thin CV (a cirriculum vitae or "resume") in terms of educational experience. If the other side hires an "academic" expert with a CV the size of a big city phone book, you often face the argument at trial that your expert is deficient and has less credibility because he or she doesn't have the necessary "pedigree" to offer expert opinions.

That's why an obituary buried in the back of our local paper this week caught my eye. Lowell Randall died early this week at the age of 96. Who was Lowell Randall? Only a premier rocket scientist who was part of a team who developed rocket engines that paved the way for spaceflight that eventually sent U.S. astronauts to the moon. He later led a team of scientists that developed The Titan I intercontinental ballistic missile.

Lowell Randall never had any formal education beyond high school. Amazing. It just goes to show that lack of a formal education is not a barrier to expertise or knowledge in any field.

So the next time you're faced with the argument that your expert is inferior to the other side's flashy expert with a thick CV and scads of technical publications and achievements, tell the jury about the story of Lowell Randall. Sometimes dirty hands and a dust covered field jacket are just as valuable in terms of knowledge as someone who pontificates from the comfort and distance of the world of academia.

Why All Patients Should Request Their Medical Records

2012-01-06T13:19:00.008-05:00

NPR recently ran an an informative piece on why patients should know what's in their medical records, and some of the blowback from the medical profession on this issue.

As a personal injury attorney one of our standard practices in any auto or other accident claim is to request our clients' complete medical chart from their primary care physician (PCP), since many injured clients frequently seek treatment from their PCP after a collision (a good idea, by the way, unless there is an immediate need to see a specialist like an orthopaedic physician). Moreover, we also need to know whether there was any history of any injuries or treatments to the body parts injured in the crash, so the PCP's records are a good place to start. As such, we read volumes of medical records.

There are two huge reasons why you need to request a complete copy of your PCP's office records.

PROTECTING YOURSELF FROM UNSCRUPULOUS HEALTH/LIFE/DIABILITY INSURANCE COMPANIES WHO ARE LOOKING FOR ANY REASON TO CANCEL YOU (AND YOUR POLICY) LIKE A STAMP...

Have you ever filled out an application for health, life, or disability insurance and attempted to answer endless questions about doctors you've seen and conditions you've had? There's a reason why they're so detailed. Your application is a possible club for them to use to cancel your policy if you get seriously ill and turn in hundreds of thousands of medical bills. It's called "recission," and insurance companies have engaged in a recent trend of hiring recission teams that scour your application for inconsistencies or ommissions, and then claim that you "misrepresented" your application. Result? Policy cancelled. And time to call an attorney...

According to Wendell Potter, former director of corporate communications for CIGNA health insurance and author of the book "Deadly Spin,"a 2006 Congressional investigation found 3 large insurers retroactively nixed nearly 20,000 policies over a 5-year period.

Life and disability insurance companies are not immune from these shady tactics either. You can read about them here.

Here is one way to blunt these tactics and bulletproof yourself against a possible recission/cancellation claim. The next time you have to fill out an application for insurance, get a copy of your doctor's office chart. Not only will you have a handy reference for all of your past medical history you're required to list on the application, consider attaching your records to it! I did this recently, along with a typewritten statement that said "because I cannot remember every medical visit/treatment I've had over the last five years, I am attaching a complete copy of my family doctor's office chart." With that degree of thoroughness, how can any insurance company argue that you "failed to disclose material medical information?" Problem solved.

YOU LEARN ABOUT YOUR DOCTOR...

Every time I read a doctor's office chart I learn something about that doctor. Many amaze me with their thoroughness and attention to detail and a genuine concern for their patients. It shows in the chart. Many times after reviewing my clients' medical chart I will call them and let them know how detailed the chart and how thorough their doctor is.

The opposite is also true as well. Some charts include all sorts of extraneous information and even the doctor's own personal opinions and musings about their patient, or their injury claim. I've also personally seen sloppy and even inaccurate or incorrect information contained in many charts. When clients discover this, they are often hurt or angry that their doctor would include such information in their chart.

Either way, you learn quite a bit about your doctor and the "on paper" state of your medical health when reading your own records. And one final point: if you discover inaccurate information, you have every right to confront your doctor and ask him or her to correct it.

After all, the chances are good that another set of eyes at a behometh insurance company will eventually be reading them. You might as well look at them first. After all, they're your records...

What Will Your 6 Minute Video Look Like?

2011-12-19T09:30:00.005-05:00

One of the most difficult and heart wrenching parts of my job in representing families in wrongful death cases is watching the video compilation/tribute of the deceased person. We've all seen some form of these, as typically the funeral home will take selected family photos and put them to music on a DVD.

The irony of my task is that I'm trying to get to know a person I've never met and never will. And I have to know that person in order to convey what has been taken away from the family. After all, how can you represent a family for the loss of a loved one if you know little about the person who was taken away from them?

Personal contact with your clients is a must. Many times the best place to talk is not in the office, but in their home, where they can open up and share all the wonderful stories about their loved ones--what they enjoyed, made, constructed, or their favorite spot to relax or toil--essentially what made them "them." Often times the stories are wonderful and uplifting even if the tears flow while they're recounting them. It's on their terms and in their comfort zone this is exactly where these stories need to be shared.

But the video tribute always gets to me. It's a series of snapshots in happier times where you're given a small window to peek into the lives of others. You see the progression of a family from childhood to youth to marriage and children and beyond. You feel the enormity of the family's loss as best you can as an outsider, and it is a huge reminder of the enormity of the task placed squarely on your shoulders as their attorney.

And, I have to confess, it is a stark reminder of my mortality. A lifetime reduced to a six minute presentation. It often makes me wonder: what will my six minutes look like? What will any of ours look like? And then it's back to work, and the grind of more immediate and weighty matters, the things you can't compile in a video. Things like justice and accountability.

One Good "Legal" Reason For Not Eating At Chik-Fil-A

2011-12-01T11:44:00.005-05:00

Nobody likes bullies, whatever form they come in. Chik-Fil-A has apparently unleashed its legal bullies from the coop and is threatening a Vermont artist for selling "Eat More Kale" T-shirts and apparel. Their legal theory? The "Eat More Kale" slogan infringes on its "Eat More Chikin" and is in violation of trademark laws. According to a recent news account:

Muller-Moore, who describes himself as a folk artist who earns a living working as a foster parent for an adult with special needs, said he started using the phrase "eat more kale" in 2000. A farmer friend who grows kale, a leafy vegetable that grows well in Vermont and is known for its nutritional value, asked Muller-Moore to make three T-shirts containing the phrase for his family for $10 each.

A few weeks later, the friend told Muller-Moore that people kept asking for the shirts. The phrase helped him get his silkscreen business going, which he later expanded through the Internet. Now, he prints "eat more kale" on hooded sweatshirts too. And he has the words printed on bumper stickers that are common throughout central Vermont.

Chick fil-A lawyers have threatened to sue him if he does not stop printing the shirts and have demanded that he turn over his website to them. This is yet another example of of corporate legal bullying at a time when the corporate world is lobbying endlessly for "legal reform" and limiting consumer and injury lawsuits against them.

Tastes like hypocrisy rather than chicken to me. Don't these companies have anything to do rather than go after a small time artist promoting green leafy vegetables? I have my own phrase that I will donate to Chik Fil A that they can trademark free of charge. "Uz Less Lwyerz...And Fry More Chikin."

"Roaches On A Plane" Lawsuit Is Raunchy.

2011-11-15T10:15:00.005-05:00

"Snakes On A Plane"--move over. We have a new plot for an action thriller thanks to a Charlotte attorney who's launched a lawsuit against an airline because some cockroaches were roaming around in the plane during a short flight. He's suing for damages in excess of $100,000 for "emotional distress" and other associated psychological ills.

As they say on ESPN, "C'mon, man!" Really? As a personal injury attorney, I want to say thanks to this colleague. Thanks for adding to the list of goofball lawsuits that make it into the media, and feed into all the negative stereotypes about our legal system. You know, the ones people ask me about at a party or bring up when I am picking a jury during a trial where my client has LEGITIMATE injuries. It's funny how miscreants like drunk drivers can wallop people over and over again, I'll file a lawsuit, the claim is either settled fairly or tried to a jury, and the media never reports it. That's not newsworthy. But a $100,000+ lawsuit THAT WILL GO NOWHERE is now plastered all over the media.

I'm reasonably sure "roaches on a plane" will make the list as a topic of discussion the next time I'm in court. And thanks too for giving The Chamber Of Commerce's militant "Institute For Legal Reform" more fodder/propaganda for its mission: to wipe out or limit YOUR INDIVIDUAL right to access the courts, unless you're a corporation, and then you can sue the pants off of anyone without restriction.

If this lawsuit even survives a motion to dismiss, if I were a judge I would award damages of a few extra bags of complimentary peanuts for his next flight. He could use them as a repellent. After all, cockroaches don't like peanuts. I've heard that if they eat them they will blow up and die.

OK, maybe that's an urban myth, like Juicy Fruit gum and moles and Alka Seltzer and seagulls. Add this lawsuit to the list of "urban myths" about our legal system. No matter what The Chamber of Commerce says in their latest "e-mail alerts," these cases are the exception, not the rule.

An Overlooked Element Of Damages/Losses In Personal Injury Claims

2011-11-04T09:01:00.003-04:00

The accident scenario is a typical one: the client is creamed in a collision. After the initial bevy of acute care treatment in the hospital or ER, the client then begins the long, arduous journey of a series of diagnostic tests, stints of physical therapy, surgery, all the post surgery rehab (usually more therapy), and follow up appointments with their medical provider of choice.

What we as personal injury attorneys frequently overlook is all the time and effort it takes for clients to schedule around and attend all the appointments with therapists, etc. Quite simply, it is a huge hassle just to make all these appointments. And expensive too. With the cost of gas at over $3 a gallon, it all adds up.

Recently we calculated all the miles a client (who was broadsided by a drunk driver) travelled for numerous trips to therapy, doctors appointments, rehab after surgery, etc. It was staggering--over 1,000 miles of local driving. A few minutes on Google Maps makes this task simple and easy.

Do insurance companies recognize these losses in settlement negotiations? Usually not. If they do recognize them, they typically don't reimburse these losses on a dollar for dollar basis.

But that's not a reason to forego claiming mileage and the cost of gas and other inconveniences during settlement negotiations. Where is the REAL value in pointing out all these losses? At trial. Even the most skeptical juries can appreciate these losses, even if they struggle with how much an auto accident victim's "pain and suffering" is worth. In fact, this evidence can actually help a jury when calculating a pain and suffering amount when deliberating on a verdict.

After all, it's hard enough to deal with physical pain and disability associated with an auto or trucing collision. It's even harder when you have to make arrangements to leave work early, get in your car, show up early for your appointment, go through the rigors of physical therapy, and drive home and deal with the ordinary aspects of life like preparing meals, laundry, helping the kids with homework, etc.

Sometimes taking a step back and looking at all the ripple effects of an injury can help us see the bigger wave or picture in terms of our client's damages and everything they've gone through. The old adage of "walking a mile in the other person's shoes" applies here...

Surgical Fires In The Operating Room

2011-11-01T13:44:00.003-04:00

Today while working out at the local YMCA I saw a report on The Today Show about the problem of patients catching fire during routine operations. The crowd gathering around the TV was shocked to learn that this can happen. Actually, it has been occurring for quite some time, as I have written about here and here.

It even happens at world renowned institutions like The Cleveland Clinic. In fact, it is estimated that 500-600 surgical fires are reported every year. Since not all states are required to report surgical fires, the number might be higher.

Every hospital should have training protocols in place to educate the surgical team on how to prevent these fires, because they are absolutely preventable. So ask your surgeon if he or she has experienced any fires during surgery, and also ask about any training the staff has undergone. It's a reasonable question that any patient deserves an answer to before going under anesthesia...

What Auto Coverage Do You REALLY Have if You're Injured While Driving A Company Car?

2011-10-21T10:53:00.005-04:00

If you are driving a company car, you may have NO uninsured or underinsured insurance coverage (known as "UM/UIM") to protect you and your family if you're involved in a serious crash. This can happen even if you're told by your employer that your company car has "full coverage." Here’s what can happen and what you need to know in order to avoid a “no coverage” gap.

The scenario: You were told by someone in your company that the company car has “full coverage.” Or, perhaps you simply assumed it. Months or years later, you are seriously injured in a crash by an uninsured motorist (no liability coverage) or an underinsured motorist (someone with low liability limits). You miss months or years of work, or worse yet can't return to your job because of your injuries.

You come to learn that your “full coverage” on the company car did not include uninsured/underinsured motorists coverage because your company declined the coverage (perfectly legal in Ohio and other states). Problem: nobody ever explained that to you before the crash...

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

How do you avoid huge monetary losses and possibly bankruptcy over a collision that was not your fault while driving a car you were told had "full coverage?" There are basically two things you can do to find out whether your employer has purchased any UM/UIM coverage at all, or enough to protect you. First, ask your HR department or someone in charge of insurance matters: “Is there UM/UIM coverage on my car and what is the amount of coverage?” Ask to see a copy of the “Declarations Sheet” for your car. But what if you are not comfortable asking this for fear of “making waves?” There is still something you can do.

Ask your personal auto agent who insures your family vehicle(s) about purchasing “Drive Other Car” coverage. This coverage basically covers you for other autos that you drive that you do not own. You may ask: “Why doesn't MY auto insurance cover me when I drive another car?”

Welcome to the world of more fine print “exclusions” in your policy. Buried in your policy is probably a “non-covered auto” exclusion. It basically says that your auto policy does not cover you when you drive another vehicle you do not own when it is made “available for your regular use.” And if your company car is “made available for your regular use,” bingo – the exclusion applies, and you’ve now got no coverage.

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

These simple steps will close this potential “no coverage” gap on your company car.

What To Do If "The Insurance Adjuster Is Coming To My House To Offer Me A Settlement."

2011-10-19T11:33:00.007-04:00

Dallas, Texas Attorney Jeff Rasansky hit the nail on the head recently in his post about insurance companies' recent amped up tactics to immediately cash out auto accident victims' injury claims with "offers" of settlements within days of a crash.

This tactic is not limited to Texas and has infiltrated into Ohio for quite some time now. In fact, let me share a similar experience on an Ohio auto collision/personal injury case I am handling that proves this is becoming an all too familiar tactic.

A few moths ago, a client calls me. She is a mother of three children, including a nine month old child. She's taking her two children to elementary school, along with two neighbor kids and her nine month old child. She's rear ended at a high rate of speed while attempting to turn into the school lot. All the children are taken to the ER to be evaluated. She declines treatment because she's concerned about getting all the kids evaluated (imagine the chaos of having your three kids in the ER along with the neighbor kids).

The next day, an adjuster shows up at Mom's house and writes checks for $250 for each kid and her. She leaves some "releases" for Mom to sign, meaning that by accepting the checks and signing the releasee, the claim will be over and closed. She eventually cashes the checks, but does not sign the releases. In the meantime, she starts to develop neck and back pain and calls a chiropractor to get checked out.

She informs the adjuster the next that she's seeing a chiropractor to be evaluated. The adjuster informs her that her claim is over and therefore they will not honor or pay for any medical bills. Mom tells friendly adjuster that she did not even have a chance to be seen for her injuries in the ER and that she did not sign any release. Too bad, says the adjuster: claim over since Mom cashed the checks. Mom returns the checks and writes a letter to the adjuster indicating that she had no intention of closing out her claim. The letter is ignored.

After hiring me, I write the friendly adjuster and ask that the claim be re-opened. I'm told in no uncertain terms to pound salt. The next day, a lawsuit is filed. Eventually, I get a call from an attorney for the insurance company, informing me that the insurance company is now backing off and honoring the claim.

It took a lawsuit to expose and nullify this strong arm tactic. Here's the insurance company's playbook: get to auto accident victims as soon as possible, throw an immediate, small amount of money at these folks in a bad economy, and play the "you settled your claim" card if the person seeks medical treatment even a few days after the collision. This tactic is a well organized scheme to pray on folks who are vulnerable or innocently ignorant about how the claims process works.

So what's the solution here? Simple. Decline the friendly adjuster's invitation to come to the house and "talk" about your claim. You should tell them that if they want to send somebody to appraise your car, that's OK, but you should never discuss any potential personal injury claim with them immediately after the collision. It's simply not in your best interests to do so. Between these shenanigans and all the other "routine paperwork" thay may ask you to sign (like a blank medical authorization giving them a license to fish around in your medical history), you may well sign your rights away and be stuck down the road if you develop a medical problem down the road.

Bottom line: they are not coming to your house to be "fair" to you. They're coming to cash you out and cut off their potential losses and liability. That's all you really need to remember...

Read On If You Think You Have A "Full Coverage" Policy On Your Motorcycle Or Scooter

2011-10-12T13:43:00.004-04:00

Client is T-boned at an intersection while on a scooter. Bad injuries--they usually are when scooter or motorcycle meets car. Ankle fracture and two shoulder surgeries for a total of 3 surgeries. Lots of physical therapy lasting well over a year and medical bills approaching $40,000.

The negligent driver who caused the collision? He had only $100,000 liability limits. Not nearly enough to compensate the injured person for all of her injuries. Before the crash, she was sold a "full coverage" policy that included $25,000 in Uninsured/Underinsured Motorists' (UM/UIM) coverage.

Under Ohio law, this policy provides NOT A PENNY of coverage for her. It is a totally useless policy because in order for her to collect a penny of coverage, she has to have more in UM/UIM coverage than the negligent driver had in liability coverage--in this case, more than $100,000. The result? She paid for $25,000 in coverage and gets nothing from her own insurance company. She is limited to the $100,000 liability limits under the negligent driver's policy.

The agent who sold this worthless policy has committed "agent malpractice" in my opinion. Why on earth would an agent sell her such a low policy amount on a scooter or motorcycle knowing that (1) she can't collect any money under her UM/UIM coverage unless she has more in UM/UIM coverage than the liability limits of the negligent driver; and (2) anyone operating a motorcycle or scooter who's on the receiving end of a collision with an automobile is probably going to sustain some serious injuries as a result?

None of this was explained to her when the agent "recommended" this policy. And, by the way, she has to repay her health insurance company out of her settlement for the $40,000 it shelled out for her hospital, surgery, and rehab bills.

Not a good deal at all. All of this could have been avoided if the agent had sold her a policy that included at least a minimum of $250,000 in UM/UIM coverage (I personally would recommend a minimum of $500,000 if not more). Here's the kicker: she probably could have bought $250,000 in coverage for about $100 more per year.

Unfortunately I've seen this scenario over and over and over again. So all of you motorcyclists and scooter riders, do yourself a favor: call your agent and increase your coverage. You'll be glad you did if some irresponsible motorist turns left in front of you or runs a red light...

Does Tort Reform Create Jobs?

2011-09-13T08:19:00.008-04:00

For those unfamiliar, tort reform is politicians passing laws limiting your right to bring a lawsuit and limiting what you can recover due to someone else's negligence. Standing directly behind these politicians, like a hand on a shoulder, are special interest groups who "lobby" (I use that term lightly--think $$$$) for passage of these laws. The players? Liability, medical malpractice, and health insurance companies, medical groups, The Chamber of Commerce, and about 287 other well heeled (think $$$ again) groups. Their premise? Cutting down your individual rights is good for you, and good for all of us, because it creates jobs.

It's a simple mantra: less lawsuits means more jobs. Nice and "bumper stickery." The other day I found this link searching the "Internets" where the Governor of Mississippi is claiming that after tort reform measures passed there, 41,000 jobs were created. How he specifically tied this to passage of tort reform laws is unclear. It's like saying that Captain Crunch makes the sun shine because I ate it for breakfast three days in a row and then the sun came out, but let's take The Governor at his word and accept it as true.

Well who cares about Mississippi? What about Ohio? Let's review. In 2003, Ohio pols passed "medical malpractice reform" and now we have caps on damages ranging from $250-500,000 for people who win their case and prove in court they've been injured due to medical negligence (Note: there IS no cap for wrongful death medical claims because The Ohio Constitution forbids it).

Not to ignore the "lobbying" of other corporations who got in line after the 2003 reforms, in 2005 Ohio pols passed "general tort reform" for ALL types of Ohio personal injury claims. Those caps range from $250-350,000, with exceptions for certain catastrophic injuries.

We've had almost a decade now of a burlap sac of "legal reforms" in Ohio. And we're not alone with just our like minded Miss. friends. Over 32 states now have "caps" on damages that limit what those maimed and injured can recover in a lawsuit.

So where are all the Ohio jobs that were supposed to flood into our state after these reforms? Where are all the decreased health insurance premuims in Ohio? Where are the lowered health care costs and lower medical bills?

If the "tort reform means more jobs" premise is true, the economies of 32 states should be booming right now with an explosion of jobs and low unemployment rates, right?

How is this "let's trade your rights for jobs" premise working? Anyone? Pass the Captain Crunch please. It's getting cloudy here in The Buckeye State.....

Anatomy Of A Lawsuit (Part 2): The Investigation

2011-09-01T23:22:00.001-04:00

“Do I have a case?” It’s a common question in any initial client meeting. The answer really depends on what happened to you, and this in turn will determine both the timing and extent of investigation needed to answer this question.

AUTO ACCIDENT CLAIMS

By and large, many auto accidents are straightforward. If you were rear ended or broadsided at an intersection, usually this is documented in a police report, the at fault driver is cited, and frequently that person’s insurance company will acknowledge responsibility for the collision (responsibility for all of your medical bills, lost wages and injuries is another matter—don’t expect the insurance company to roll over on those issues). These situations many times obviate the need to launch a detailed investigation. However, there are many exceptions to this rule.

SERIOUS AUTO AND TRUCK CRASHES/COLLISIONS

In these situations, many times it is a good idea to hire an accident reconstruction expert to review any forensic evidence such as skid and yaw marks left at the scene, any of the vehicles involved, or any other physical evidence. Occasionally, law enforcement accident reports miss or fail to document critical evidence, making it necessary to conduct a scene investigation with the accident reconstructionist, who can prepare a full scale diagram of the accident specifics.

Large truck collisions present especially unique concerns as I have written about here and here. Time is frequently of the essence and the trucking company must be put on immediate notice of a potential lawsuit in order to preserve a slew of internal documents that may shed light on how and why the collision occurred.

MEDICAL MALPRACTICE/NEGLIGENCE CLAIMS

The timing of any medical malpractice investigation depends on a whole host of factors, and there are many traps lurking here. The starting point of any medical malpractice investigation is obtaining the medical records in issue. However, It is not uncommon for a malpractice victim to still be in the throes of medical treatment weeks or months after the initial acts of malpractice. If records are requested while you are still receiving treatment from the physicians who “inherited” your treatment, they may get wind of your request, and this may impact your medical treatment (think “white coat of silence” and this will make more sense). Since your main goal is to get the best treatment you can, the last thing you want to do with a premature request for records is tip off your new physicians that you may be looking into a potential investigation of the doctor who may have committed malpractice.
On the other hand, since Ohio’s statute of limitations is so short (in many cases one year), there may be no choice but to request the records immediately due to time constraints. However, all these things must be balanced when any investigation is launched.

In other cases, particularly wrongful death cases, sadly many records are not complete until weeks after the incident. You should allow a reasonable amount of time to pass to ensure that the records are complete before you request them.

As you can see, each situation is unique, and timing is everything. Only an experienced personal injury can guide you through some of these minefields in a way that will allow for a thorough investigation before answering your legitimate question: “Do I have a case?”

Hot Dog Legal Wars: Who's The Biggest (Wiener?) (Whiner?)

2011-08-17T14:00:00.015-04:00

Hot dog companies suing the casings off each other. Seriously? You bet, according to a recent news article. With apologies to Bruce Buffer, the ever present UFC announcer, in one corner is Kraft Foods, home of the Oscar Mayer Wiener. Their corner team consists of a paltry four attorneys. In the opposite corner is Sara Lee and the Ball Park Frank, which has "mustered" (ooh, pardon the bun..err...pun) an entourage of five lawyers.

A reporter for The Naperville (Ill.) Sun aptly summarized this lawsuit lunacy when he noted:

In a development that proves we are entering the dog days of summer, as well apparently as the fact that large corporations have to find some way to justify all the money they spend on lawyers, two of the Chicago area’s biggest companies went to trial Monday over whether they have been making false advertising claims about their hot dogs

.

Really? Two huge companies seeking to spend probably millions in legal fees grilling and roasting each other over claims and counterclaims of false advertising and unfair "taste tests?" To me, that sounds like a whole lotta bun and no dog, or at least a colossal waste of judicial resources and time (no word on whether the late great U.S Supreme Court Justice Felix Frankfurter will return from the heavens to preside over the case).

But here's what really skewers me. The Chamber Of Commerce and its militant wing, "The Institute For Legal Reform," is famous for sending out alerts and e-mail blasts about the latest "frivolous lawsuits" that supposedly cost us jobs, drag down the economy, and raise the price of consumer goods. According to The Chamber, frivolous personal injury lawsuits are as Un-American as a tofu hot dog served at a VFW picnic on the 4th of July.

But when it comes to two colossal corporations using the legal system in no holds barred, dog eat dog fashion, this is perfectly OK to The Chamber. Wouldn't millions in corporate legal fees conceiveably drive up the cost of Oscar Meyer wieners and Ball Park franks? Yet, you won't see any "e-mail alerts" or railing on this ridiculous lawsuit because corporations' full access to the legal system is "The American Way" and should be cherished. To do so would step on a few corporate toes, and The Chamber will have nothing of that.

Why the double standard? Because they don't care about your individual access to the legal system if you get maimed or screwed. In fact, they spend millions each year lobbying for laws that make it as hard as possible for you to sue corporate America even for LEGITIMATE claims and injuries.

There's two sides to the bad lawsuit coin, folks. But you'll hardly hear about legal laughers like these corporate "wiener wars" unless you dig really hard or stumble upon websites like this one.

All this talk about hot dogs is making me hungry. I think I'll go grill some Nathan's dogs (my preference anyway). I'm sure The Chamber of Commerce will recommend that I wash them down with some McDonald's hot coffee...

The Anatomy of A Personal Injury Lawsuit (Part 1)--The Initial Meeting

2011-08-02T11:13:00.006-04:00

Almost all of our Ohio personal injury clients have had no dealings with lawsuits or the legal system. Their only "experience" may have been what they've heard from others or what surfaces in the media. Consequently, they understandably have no frame of reference for the day to day workings of our civil justice system. When this truism is mixed with the LOADS of misinformation floating around about our legal system (hatched by interest groups too lengthy to mention here), it can be a prescription for a lot of confusion.

THE INITIAL MEETING

This is often the first opportunity we have to educate our clients about what is involved in the life cycle of a personal injury claim. But before this occurs, the best thing we can do is simply listen. Clients have understandable concerns and questions like:

Who's going to pay for my medical bills?
Will my lost wages be covered?
How long will my claim take?
Will a lawsuit be necessary?
What is my claim worth?

Many of these questions can be answered at the initial meeting. In fact, our free book, "Your Ohio Accident: Sorting Through The Insurance Maze," addresses many of these questions. One question that CANNOT be answered at the initial meeting is the value of the claim. There are too many variables that come into play that make that question pure guesswork until more information is learned from the accident report, witnesses, the medical treatment, what's contained in the medical records, and whether the client's injuries are permanent or merely temporary in nature.

But for certain, the initial meeting should not be a 15 minute revolving door one, and it should not be a high pressure "sign the contract right now for us to get started." Anything else is a red flag that should send you right out the revolving door to someone else...

Preserving Evidence In An Ohio Truck Accident--And The Most Important Thing To Do After An Accident

2011-07-21T11:55:00.010-04:00

When it comes to semi or large truck accident cases, The Rolling Stones were wrong. Time is not on your side. As the clock ticks on your truck collision claim, here's what you need to know.

There is a little secret known to some (but not all) attorneys who routinely handle trucking accident cases in Ohio or any other state for that matter. This gem packs a powerful punch, and is an absolute must do for any attorney who represents truck crash victims. Properly done, it can set the table for cementing a solid liability case against a negligent truck driver and his or her employer. It can even be crucial in exposing a trucking company to a claim for punitive damages.

It is a "spoliation letter." A spoliation letter is a detailed letter sent to the proper entities that demands that a truckload (pardon the pun) of information and documents be immediately preserved and not "spoliated" (legalese for destroyed) in the event of possible future litigation against the trucking company.

Why is a spoliation letter so important? A thumbnail sketch of the anatomy of a trucking accident and lawsuit will shed some light. Reduced to its essence, any trucking accident involves a relationship between 3 crucial elements: the driver, the truck, and the trucking company.

There are a myriad of possibilities that cause a truck accident. Was it driver error? Was the truck overloaded or the cargo not properly secured? Was the driver fatigued or over his federally mandated hours of service driving requirements? Did improper maintenance contribute to the crash? Was the truck properly inspected at the necessary intervals? Or, did the driver have no business being behind the wheel due to a poor accident history or a shoddy background check?

Trucking companies are required to keep detailed records on all these issues as mandated by The Federal Motor Carrier Safety Administration (FMCSR) Regulations and, in Ohio, through the PUCO. But here's the rub: many of these records are subject to a retention period of as little as six months.

A thorough spoliation letter sent immediately after a trucking accident, which details a request for all these records, coupled a request to preserve them, is essential to avoid a lawsuit defense down the road of, "gee, we got rid of those records after _____ months in compliance with federal regulations."

Example: recently I represented a dock worker injured in a loading dock accident when the truck driver failed to set the brakes, and the truck drifted during loading. The driver had a standard "accident kit" (per his company's written policy) that included a disposable camera. A spoliation letter was immediately sent, which included a request that all accident photos be preserved. The trucking company denied liability, and a lawsuit was filed.

Sure enough, the trucking company denied that it had any photographs of the accident scene. One small problem: the driver was eventually located, and he claimed that not only did he take pictures, he turned them into the Safety Director (who denied all of this under oath).

Armed with this "photos--what photos?" defense, and our initial spoliation letter, we filed a motion to include a claim for punitive damages against the trucking company for "spoliation of evidence." There is ample law that allows a claim for punitive damages when a trucking company is on notice of possible litigation, and allegedly destroys or loses evidence. After the judge granted our motion, the case settled just before trial.

So here's the takeway: what's a surefire way for crucial evidence in your trucking accident injury case to be forever missing like the infamous Watergate tapes? Simply wait on insurance companies' promises to "treat you fairly" after an accident, eventually receive a crappy settlement offer, finally decide to call an attorney, and then let him or her tell you that crucial evidence is now missing due to a long lapse of time.

How Do You Select A Competent Ohio Malpractice Attorney?

2011-07-19T22:19:00.004-04:00

Choice can be a good thing when it comes to hiring any professional. But when it comes to hiring an Ohio malpractice attorney, how do you sort through the seemingly endless maze of phone book and TV ads, and a dizzying array of Internet websites? Here are some tips that will hopefully make your choice easier.

AVOIDING THE INTERNET "CIRCUS"

I've never been a fan of circuses. Too many clowns for my liking--in fact, one clown is one too many in my opinion. And the food is downright awful. The standard fare cotton candy and circus peanuts not only lack any nutritional value, but give me a sugar buzz, splitting headache as well. In many ways, a circus is a good metaphor for the majority of websites designed to "help" you select a medical malpractice attorney.

For example, some websites are "generic" sites that do not identify a specific malpractice law firm or attorney. Many are nothing more than "clearinghouses" and are actually out of state firms that attempt to "sign you up," then refer you to an attorney in your local area. The catch? The "referring" firm takes a cut of the potential recovery in your case, and you have no choice over the local attorney whom you're referred to. If you like the idea of a roundabout, "forced marriage," feel free to go this route.

Yet other websites merely list firms in local areas who claim to provide legal services like "malpractice attorneys." Take lawyers.com, for example. If you click on "ohio" and "personal injury" and then hit the link for "Canton," you're given a listing of various firms from all over Northeast Ohio who claim to litigate Ohio malpractice claims. The problem? Many of these firms actually represent doctors and hospitals in defending malpractice claims! Obviously, if you're a malpractice victim looking for an attorney to represent you against a doctor or hospital, you have no way of identifying which of these firms represent malpractice victims or defend those claims--unless you visit countless firm websites and/or make numerous phone calls.

"SELF LAUDATORY" WEBSITES

As you fine tooth comb numerous law firm websites, ask yourself this question: how many firms and attorneys devote countless website text and video talking about themselves? How do adjectives like "experienced, "tough," "committed," "aggressive" help you select a competent firm when most firms are touting these superlatives? If you think about it, have you ever viewed a law firm website that says: "We're not all that experienced, tough, compassionate, or competent but we would like to represent you?" The point is this: "bragging" websites are a lot like that circus cotton candy: airy, doesn't last long, and seriously lacks any real substance.

The same holds true for all those TV ads. Does this mean that these firms are not competent to handle your malpractice claim? Of course not. But it does mean that you have to dig deeper to cut through all the cookie cutter claims of "greatness" that exist on the airways or on the Net.

There is a better way to hack through this forest. The absolute best way to start any search for an attorney is to ask friends, neighbors, or those connected with the legal system, for a recommendation or two. Second, look for websites that actually give you useful information that may answer some questions you may have before you ever pick up the phone or send an e-mail inquiry. Third, an in person interview is a must. You should expect not to be "pressured' to sign anything during your initial interview. And be on the lookout for any attorney or firm that tells you that they "are the only one" that can adequately represent you. No lawyers should feel the need to blow out some other lawyer's candle in order to light their own.

So shop around. And make your choice carefully and methodically.

Reason No 72 For Ohio Drivers To Buy High Amounts Of Uninsured/Underinsured Motorists' Coverage

2011-07-01T14:41:00.002-04:00

You may get creamed by a negligent Ohio driver with this language lurking in an auto policy:

"IN CONSIDERATION OF THE PREMIUM CHARGED FOR YOUR POLICY ITS IS AGREED WE SHALL NOT BE LIABLE AND NO LIABILITY OR OBLIGATION OF ANY KIND SHALL ATTACH TO U.S. FOR BODILY INJURY, LOSS OR DAMAGE UNDER ANY OF THE COVERAGES OF THE POLICY WHILE ANY MOTOR VEHICLE IS OPERATED BY____________."

How does this language find its way into an auto policy? Simple. Let's say a family has a family member with a horrible driving history. Typically, this involves a young driver who lives in the family household. He may have numerous speeding tickets, DUI's, and/or prior accidents. one of two things happens. The insurance company issuing the policy may conclude that the bad driver is too much of a liability risk, and demand that the driver is not covered under any policy issued to the household or the vehicles insured under the policy.

Secondly, the family itself might request that the family member be excluded because they don't want to pay the increase premiums for the driver, in order to obtain a cheaper insurance quote. Under either scenario, this exclusion will find its way into the policy. Translation? If this horrible driver creams you and puts you in the hospital, there's no coverage and no obligation for the insurance company to pay for your medical bills, lost wages, and injuries.

Ouch. In fact, double ouch. How do you avoid this mess? The only way you can protect yourself is to purchase ample amounts of "Uninsured/Underinsured Motorists' Coverage (known as "UM/UIM") FROM YOUR OWN INSURANCE COMPANY. If the bad driver is considered "uninsured" because of this exclusion, you can make a claim against your own insurance company for all of your losses. How much coverage should you carry? At least $500,000. The good news is that this coverage is CHEAP. I have had many clients bump their UM/UIM coverage from a standard (and insufficient) $100,000 to $500,000 for just over $100 per year!

We explain this in our FREE book: "Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy. You can order it by going to our website (www.n-wlaw.com) and clicking on the book.

Can An Insurance Co. Deduct Taxes From Your Ohio Auto Accident Lost Wage Claim?

2011-06-23T12:56:00.003-04:00

So you want to handle your own personal injury case with the at fault party's insurance company? If you were injured in an Ohio auto collision and missed considerable time from work, it stands to reason that you have a right to recover for your lost wages. But what is the measure of your lost wage claim: your gross lost wages, or your net lost wages after taxes are withheld?

Insurance companies are famous for arguing that they are only obligated to pay your net lost wages, which of course means a 30% discount in many instances.

Insurance companies are dead wrong on this issue. Under Ohio law, a jury is instructed to consider the gross income of the injured person or decedent (in the event of a wrongful death) and not the net income after taxes and deductions.

That has been the law of Ohio for years now. But that does not stop insurance companies and adjusters from insisting, time and time again, that they are only responsible for paying an injured person's net wages. Why do they argue this in the face of clear Ohio law prohibiting this argument? Because they can, particularly if they are dealing with a person (or even an attorney) who is ignorant of Ohio law.

Remember, their goal is not "fairness" to you as the injured person. Instead, their goal is to close your claim as soon as possible and pay as little as they can get away with paying. Doesn't make them evil, but it doesn't mean you have to roll over and take it because they spout this nonsense or tell you that their "company policy" prohibits paying the gross amount...

Online Criticisms Of Physicians...Lawsuits Are Not The Answer

2011-06-12T10:39:00.002-04:00

It's a brave new Internet world. There are scads of online ratings services that now allow you to rate and discuss your interactions with professionals, including doctors. One Minnesota doctor, who did not appreciate a scathing summary of his interaction with a patient, took the drastic step of suing the reviewer (the patient's son) for defamation.

A Minnesota judge who heard the case tossed it out, however, ruling that the reviewer's comments were opinions that were protected by the constitutional right of free speech:

In modern society, there needs to be some give and take, some ability for parties to air their differences. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this kind any more or less defamatory.

First Amendment free speech considerations aside, as a practical matter, all this lawsuit did was bring more attention and negative publicity to the online review, and now this physician may be seen as someone who is not opposed to suing his own patients. The old adage "if you're in a hole, stop digging it deeper" applies here to playing the lawsuit card.

Because of the advent of online rating services and reviews, a cottage industry of "web defamation prevention" companies have sprung up. These companies offer "online management" strategies and "agreements" that patients sign promising not to post any review or comment about the physician. This raises the issue of whether positive online reviews of a physician can even be trusted as genuine, or are part of a strategy to elicit only favorable comments.

One the one hand, I can sympathize with any professional who is the target of a scathing, anonymous, online review. It may well be unwarrented, or done for vindictive purposes. But what is worse: resorting to a public lawsuit, or forcing patients to sign gag agreements as a pre-condition to receiving medical treatment? What kind of distrust does that foster in the physician-patient before you as a patient ever make it into the examining room?

On the other hand, a negative review might serve as a reality check if the professional's bedside manner or client communication skills are suspect or lacking. Lawsuits and secrecy agreements aside, the best antibiotic against a bad online review is an old prescription: take the time to be pleasant and thorough with patients or clients, and show some empathy for their worries at a difficult time. Treating people the way you'd want to be treated if you were in their shoes is the best any professional can do. And if a bad online review surfaces that does not accurately portray who you are as a professional, it seems to me that many satisfied patients or clients will agree in a heartbeat to post their positive exeriences with you.

In a world full of comment boxes and tweets, sometimes we make things way too complicated than they need to be.

What Happens After An Ohio Wrongful Death Verdict Or Settlement?

2011-06-01T14:15:00.005-04:00

Short answer: a lot of oversight from the local Probate Court. Here's the deal: an Ohio personal injury attorney who brings a wrongful death lawsuit on behalf of the family of a deceased loved one actually represents the estate of the deceased person. The estate consists of the "next of kin," which means the spouse, children, siblings, and even more distant relatives as well. If there is a settlement of a wrongful death claim, it is for the estate, and not for any one person.

What happens next? Usually, the next of kin/beneficiaries will attempt to agree amongst themselves as to how any settlement proceeds will be distributed/divided. But even if all beneficiaries agree, it is not etched in stone.

Enter The Probate Court. Ohio's probate courts have jurisdiction over the estate of a deceased person, and this includes any wrongful death settlement. The Probate Court will review (1) the amount, and the fairness of, the settlement; (2) the appropriateness of any attorneys fees and expenses; and (3) whether the proposed amount of the settlement to each next of kin or beneficiary is fair and equitable. The Court has the authority to adjust or modify any distribution proposed by the family. A few examples might be helpful here.

WRONGFUL DEATH SETTLEMENTS

For example, if there is a wrongful death settlement of a deceased spouse/parent, who left a surviving spouse and minor children, The Probate Court will closely review how the proposed settlement is to be distributed to ensure that the minor child's monetary needs are taken care of, maintained, and preserved until (and even after) the child reaches 18 years of age. If any proposed individual amount is unfair to the minor, The Court has the power to adjust or modify the proposed distribution on behalf of the minor.

WRONGFUL DEATH VERDICTS

Same example, but let's assume that a jury returns a $1 million dollar verdict. In that case, the jury has the option to simply return a global or gross amount on behalf of the estate of the deceased person, or break it down individually between the surviving spouse and any children. Even in cases where the jury arrives at an individual breakdown of the $1 million verdct, The Probate Court still retains jurisdiction to approve or modify the final amounts to each beneficiary.

Why all this oversight? Ensuring a sense of fairness to all beneficiaries, especially in the case of minor children, adds an extra layer of protection to the process. And our fees and expenses should be subject to scrutiny as well, for the protection of the client.

Overall, Ohio wrongful death verdicts and settlements are highly regulated. And that's the way it should be.

Attorney Advertising Gone Bad...And A Lesson For Legal Consumers

2011-05-15T11:17:00.006-04:00

The next time you see yet another attorney sales pitch on TV, think: Roni Deutch. Over the last few years, she was all over the airwaves, promoting herself as a tough, experienced "tax attorney" who was going to fight the IRS and save you lots of money.

Not anymore. According to this article, Deutch is closing her law office and surrendering her license. What's more, The California Attorney General's office has filed a $34 million lawsuit against her, claiming she ripped off clients and shredded over 2 million client documents.

The lesson here, if these allegations are true, is that attorney advertising talk sometimes doesn't match the walk and the puffery. Even more disturbing is that there is no way to measure an attorney's competence or trustworthiness from self laudatory, promotional ads.

It's easy to produce a bunch of slick ads if you have enough money. Just witness the explosion of personal injury attorney ads that flood the airwaves. If that's the route injury victims wish to choose, just dial the "1-800-money-for you" number and roll the dice. Or, you can do your homework, and ask for references and examples of an attorney's actual work product.

There's still room for an old school approach to selecting an attorney who will competently handle your legal claim.

Records? What Records? One Good Reason To Contact An Ohio Trucking Accident Attorney ASAP After An Accident

2011-05-04T15:23:00.007-04:00

They're just a phone call away. A whole team of professionals--accident reconstruction experts, adjusters, and insurance company attorneys. When there is a serious large truck collision, frequently this team is on the scene within minutes or hours. Their purpose? Gathering physical evidence, taking measurements and photos/videos of skid and yaw marks, and plotting diagrams of the accident scene. Sometimes they arrive at an accident scene even before local law enforcement.

Often referred to as "rapid response teams," they've been assembled by trucking insurance companies in order to investigate collisions involving their insured commercial trucks. But the real reason these teams are deployed is simple: to minimize their risk and liability.

In addition to evaluating the accident scene, there is a truckload (pardon the pun) of other information and data that trucking companies gather and analyze. Things like drivers logs, bills of lading, fuel and toll recipts, dispatch, and driver computer records can yield valuable information as to driver location and violation of federal and state hours of service violations. More importantly, satellite tracking systems and GPS data can be matched and compared to paper records. Finally, ECM (Electronic Control Module) data contained in the tractor can often reveal vehicle speed, starts and stops, and the timing and type of any mechanical failures.

As you can see, the paper and electronic trail involving the operation of large trucks can be complex. The problem? Some of this information is subject to limits on how long a trucking company is required to maintain and keep it. For example:

Driver's record of duty status (logs) for day of and day after and thirty preceding days before the crash.

Retention period -6 months 49CFR 395.8

Messages to and from driver and vehicle for day before, day of and day alter the crash from satellite or cellular communications system and ten days preceding the crash:

Retention period -6 months 49 CFR 395.8

Dispatch or computer records for driver involved for day of crash and preceding thirty days - showing pick-up and delivery points and appointments:

Retention period - 6 months 49CFR395.8

Dispatch records - IFTA & IRP 4 yrs.

Driver payroll records or owner operators settlement for week of and week after crash and the preceding thirty days:

Retention period - one year

Fuel receipts and fuel filling records, toll receipts, maintenance receipts for equipment vehicle(s) involved in the crash for day of the crash and preceding thirty days:

Retention period - six months 49 CFR 395.8

Maintenance files and records:

6 months after vehicle leaves control of motor carrier 49 CFR 396.3

Lesson: trucking companies have the upper hand if you're the victim of a crash with a large truck. Don't expect them to do the right thing and preserve any incriminating evidence, particularly if you delay in seeking an experienced Ohio truck accident attorney or firm to represent you. After all, their motivation in dispatching a response team is not necessarily to document and preserve the truth.

Ohio Drunk Driving Case...And How Insurance Company Tries To Hang EVERYBODY Out To Dry

2011-04-18T21:07:00.005-04:00

A recent Ohio car accident case (Caraman v. Bailey) really drives home how some insurance companies will stop at nothing to protect their money.

DRIVING DRUNK...FOR THE FOURTH TIME

A Progressive insured driver smashes into and injures another motorist, injuring her. He is intoxicated and leaves the scene. It's his fourth DUI and Progressive is aware of this. The injured driver (known as the "plaintiff") brings a lawsuit against the drunk driver,and includes a claim against him for punitive damages. Under Ohio law, punitive damages can be returned against an intoxicated motorist in addition to damages for the injured person's medical bills, lost wages, and physical injuries (the latter damages are known as "compensatory damages"). Punitive damages are designed to punish a wrongdoer for malicious or reckless behavior (like drunk driving), and are usually not covered in a standard Ohio auto insurance policy.

In other words, if you drive while intoxicated in Ohio and are sued, your insurance company may cover the injured person's "compensatory damages," but you are on the hook personally for any punitive damages a jury returns against you.

THUMBING THEIR NOSE AT EVERYBODY
So how did Progressive handle the claim and the lawsuit? First, it ignored the plaintiff's attorney's offer early on to settle the case for the drunk driver's policy limits--which were a paltry $15,000. Second, Progressive evaluated the claim by using a software program known as "COA" (read on to learn what this really stands for), which did not include or allow for the plaintiff's herniated disc and spinal cord compression as recognized injuries. However, it did apparantly "recommend" that the plaintiff's claim exceeded the value of their drunk driver/insured's policy.

Third, Progressive even ignored the pleas of the drunk driver's personal lawyer. He advised Progressive that their failure to offer the $15,000 limits was exposing the drunk driver--their own insured--to personal exposure in the form of a punitive damages verdict.

THE JURY SPEAKS

The case eventually marches to trial, and the jury returns a verdict of $20,000 in compensatory damages and $50,000 in punitive damages, thus exposing the drunk driver to $55,000 out of his pocket, when the claim could have resolved for the $15,000 limits.

The judge ruled after the verdict that Progressive failed to make a good faith offer to settle the case, tacked on interest to the verdict, and upheld the punitive damages verdict.

LESSON LEARNED

This case never should have seen the inside of a courtroom, and should have been settled well before it ever got to trial. Progressive essentially ignored everybody in this case--The Plaintiff's attorney, its own insured, and even its own "software evaluation system." It even left its own insured hanging out to dry by refusing to resolve the case and exposing him to huge personal liability.

Progressive dragged this out for one reason, in my opinion: to attempt to save a few thousand bucks. And now Progressive may be facing a lawsuit by its own insured for "bad faith insurance practices" for not resolving the claim and exposing him to losing his personal assets due to the punitive damage verdict he got tagged with.

We hear a lot about "frivolous lawsuits." Yet, when insurance companies take unreasonable positions in indefensible cases, you won't read about it in the local paper. I don't know what Progressive's "COA" injury evaluation software stands for, but I think I can guess: "Cover Our A___." In defense of Progressive, however, this conduct is not all that uncommon, unfortunately. There's plenty of COA to go around.

Texting While Driving--You Might As Well Be Driving With A Bag On Your Head

2011-04-14T10:14:00.004-04:00

Much has been written lately about the dangers of texting while driving. My good friend and blogger extrordinaire Robert Mues has an excellent synopsis of the scope of the problem, and what states are trying to do to curb it, over at The Ohio Family Law Blog.

The numbers of crashes due to texting are staggering. In fact, he coined the phrase "intextication" as a means of relaying that, in many ways, texting while driving is just as bad as driving intoxicated. Recently, I have noticed a shocking increase in the number of young drivers who are messing with cell phones way too often while driving. The other night, as I was returning from my son's lacrosse came, a driver was riding too slowly in the left lane of the highway. When I passed her in the right hand lane, she was looking down at the screen of her cellphone with both thumbs on the pad.

I see this all too often. Although I like the phrase "intextication," I describe it as follows:"you might as well be driving with a paper bag over your head."

I also suspect that the problem is underreported in many crashes for the following reason. Assume a driver runs a light at an intersection while texting and injures a fellow motorist. The investigating officer does not ask the offending driver if he was texting at the time of the collision. The insurance company for the texting driver admits liability for the crash, knowing through their own internal investigation that their driver was texting.

If the injury claim is negotiated without a lawsuit being filed, the insurance company will never reveal that its insured/negligent driver was texting at the time of the collision. Instead, they'll simply admit that "our insured was at fault" in an affort to blunt any attempt to discover whether texting was involved in the crash.

If a lawsuit is filed, this tactic will be repeated. Any attempt to discover whether texting was involved will be fought on the grounds that, "gee, this is a witchhunt and a fishing expedition because we admit liability, so there's no need to get into any of this." And if the negligent driver is deposed and admits to texting, or his cellphone records are subpoeaned and texting at the time of the crash is proven, before trial the insurance company will file a motion to exclude evidence of texting on the grounds that because liability is already admitted, evidence of texting would be irrelevant and prejudicial.

Which circles back to the idea of "intextication." In the context of intoxication, in Ohio, an impaired driver can be liable for punitive damages for being "reckless"--knowingly driving impaired when it is more likely that a crash will occur. In this case, evidence of intoxication is admissible even if the insurance company for the impaired driver admits liability.

It remains to be seen if evidence of texting while driving is comparable to driving while intoxicated, in order to support a punitive damages case against the driver and admissibility of evidence of texting at trial. In my humble opinion, there's really not much difference between the two. This is the next legal battleground in the larger legal picture as technology races ahead, with all its permutations, and the law tries to play "catch up." Unfortunately, there will be many more crashes, injuries, and deaths in the meantime. OMG.

Is A Towing Company Liable For Death After Releasing Vehicle To Its Drunk Owner?

2011-04-05T11:42:00.005-04:00

Suprisingly the answer is "no," according to a recent Ohio case.

A NIGHT OF DRINKING TURNS INTO TRAGEDY

A group of four young adults head to a college town for Halloween festivities. Accompanying the group was a night of marijuana and drinking. Early in the morning, one of the group noticed that there car had been towed. They located the car in the tow yard, and after paying the bill the tow company employee returned the keys to the driver, who was noticably intoxicated.

The group headed for home. You can figure out how this story ends. The driver wrecks the car and one of the passengers is killed. The boy's parents sued the towing company, claiming that the employee should not have relinquished the keys to the driver since he was intoxicated. What's more, it was revealed in the lawsuit that the towing company:

had on previous occasions "stalled" individuals who they believed were intoxicated from obtaining their vehicle from impound. On other occasions, they allowed allegedly intoxicated persons to obtain their vehicle but subsequently contacted law enforcement to report the vehicle's make, model, license plate, and direction of travel.

The legal issue in the case was: did the towing company owe a duty to "third persons" like the deceased passenger for harm resulting from the negligent conduct of another (in this case the impaired driver)? In other words, did the towing company give "substantial assistance or encouragement" to the driver by returning his keys?

The Court concluded that the towing company did not facilitate the driver's insobriety or drug abuse. Nor did it sell or provide him with the alcohol or marijuana he voluntarily consumed. Finally, the towing company took no part in the passenger's decision to take the risk of riding in a car with an impaired driver.

Quite simply, the Court was unwilling to impose a legal duty on the towing company when it had nothing to do with the group's intoxication and decision to ride in the car when they knew the driver was impaired. I wonder if the court's decision would have been different if the facts of this case were different. What if the towing company tossed the keys to an known, intoxicated driver who then crashed into another vehicle and injured an innocent family that was heading to church or school?
After all, the towing company had withheld keys from intoxicated owners in the past, which seems to me to be good common sense and sound policy...

THERE'S A LESSON IN THIS TRAGIC STORY...

There are a couple take away lessons here. First, I doubt that the driver had high levels of liability insurance to cover any injuries caused by his drunk driving. Second, if a towing company is not legally liable, despite releasing the car to an intoxicated patron, it may leave innocent motorists injured by the driver with no legal recovery. Under these circumstances, there's only one surefire way that innocent drivers can protect themselves: purchase high levels of Uninsured/Underinsured motorists' coverage--at least $500,000 or even a million. This coverage is cheap and allows you to pursue a claim against your own insurance company in the event you are on the receiving end of a series of bad decisions that cause you harm.

Behind The Curtain: What Insurance Companies Are Doing To Dilute Or Deny Your Auto Accident Claim

2011-03-19T14:27:00.003-04:00

“We’ll work with you on your claim. We just need some information first.” This is the standard pitch an insurance adjuster will make to someone making a car accident personal injury claim.
How do I know this? Because many eventually become what I call “insurance company refugees”—folks who accepted in good faith the insurance company’s offer of “fairness,” only to become so frustrated that they were forced to pick up the phone and call me.

Here’s what may be happening behind the curtain while the injured person waits patiently for the insurance company to do the right thing.

1.Scouring Your Credit History

When you give the at fault driver’s insurance company your Social Security Number, it allows them to tap into many databases, including one known as CLUE. This is an insurace industry database that determines your insurance profile or "risk." If you have ever reported or file a previous insurance claim, it is probably in this database. Furthermore, if the insurace company is so inclined, they can search your credit history. What does that have to do with your injury claim? Nothing. But if your credit history is poor because you have heavy debt, it might make you vulnerable to a lesser offer.

2.Intercompany Arbitration

If your auto insurance company pays your auto accident bills, they will typically have a right of reimbursement from the at fault driver’s insurance company, known as “subrogation.” But your insurance company might secretly make a reimbursement claim against the at fault driver’s company by filing for “intercompany arbitration.” This is a private, voluntary dispute resolution mechanism set up amongst insurance companies. Unbeknownst to you, the at fault insurer may reimburse your insurance company, then turn around and argue that your injuries, and your medical bills, were not caused by the accident! A classic example of insurance companies wanting to “have their cake and eat it too.”

3.The Medical Audit

After the passage of weeks or months, the same company that has promised to “work with you” may have already sent your medical records and medical bills for a medical audit. This means that some medical group or physician (whom the insurance company hires on a regular basis) is reviewing your records to determine whether (a) your injuries were not caused by the collision; or (b) your medical treatment was excessive for your claimed injuries. If this review is favorable to the insurance company, you will be notified, about the same time you receive a low ball offer on your claim. On the rare occasion the review comes back in your favor, they will not share this information with you.

Remember these things the next time you’re bombarded with all countless insurance TV commercials touting all the fancy slogans and come ons…

Insurance Companies Using Technicalities To Avoid Paying Auto Accident Claims

2011-03-06T12:55:00.008-05:00

"Frivolous lawsuits," allow me to introduce you to insurance company "frivolous defenses." A recent Ohio case shows the tactics insurance companies will employ to avoid paying Ohio auto accident claims due to specious "technicalities."

Quick facts: Driver is insured with "Nationwide Mutual Insurance Company." He is injured in a crash and brings a lawsuit against "Nationwide Insurance Company." As is required by Ohio law, his attorney attaches a copy of the "Nationwide Mutual Insurance Company" policy to his complaint.

Nationwide moves to dismiss the lawsuit, claiming that the plaintiff/injured party sued the wrong party--"Nationwide Insurance Company"--instead of the proper party, "Nationwide MUTUAL Insurance Company." The trial judge dismisses the case, buying into this technical argument. Thankfully, The Court Of Appeals reinstated the lawsuit, reasoning that Nationwide was on notice of the lawsuit and was not prejudiced by plaintiff's failure to include the "Mutual" description in the complaint.

The Court Of Appeals recognized that Nationwide's legal manuverings were much to do about nothing, and now the injured party will at least get his day in court. Not a very sexy opinion that's likely to make front page news, but it illustrates the efforts insurance companies will undertake to avoid paying on a claim. And, keep in mind, this was the injured party's OWN insurance company!!!

This case proves there is another side of the coin to the whole "frivolous lawsuit" debate. It's at least worthy of mention the next time you hear someone bemoaning the infamous "hot coffee" case.

The "Mrs. Jefferson" Solution To The Tort Reform Movement

2011-03-04T10:21:00.009-05:00

I wish I had gotten her name. For the purposes of this post I'll call her "Mrs. Jefferson." She came up to me after a presentation I gave a few years ago on our civil justice system in Ohio. Actually, it was a debate.

On the panel was a local legislator, a physician, and me. They were advocating for various medical tort reforms, particularly the hard, one size fits all government imposed limits on what malpractice victims can recover in lawsuits. From my lonely perch at the end of the table, I explained that tort reform was a bad idea that really punishes innocent victims with legitimate cases of injury, and would do nothing to bring down health care costs. I argued that the only group that would benefit from arbitrary caps on damages would be the malpractice insurance companies.

It was a lively debate and it dovetailed into a discussion of frivolous lawsuits and what should be done about them. Although I probably lost the debate, like Rocky, I went down swinging...

Anyway, as it ended and I was packing my papers into my briefcase, Mrs. Jefferson approached me. She shook my hand, thanked me for talking to their group, and had this observation:

You know, it sounds to me like they need to crack down on those goofball lawsuits and leave the legitimate ones alone, because it might just be me sittin' in the wheelchair someday due to someone else's mistake.

She said more in one sentence than we did in an hour's debate equipped with talking points and fancy charts. And she's right: why punish those seriously harmed due to a preventable medical mistake with the socialistic notion that those very same individuals need to sacrifice their recovery rights for the good of the whole?

Mrs. Jefferson got it. Unfortunately, most people learn what a bum deal tort reform is for them (and individual constitutional rights) only after they're on the receiving end of a life altering, preventable mistake. It's like what Roy Rogers once said: "You never know how sweet the water is till the well runs dry." And, believe me folks, the well is running dry on your legal rights in Ohio and all over the U.S.

Hey Allstate, The Real Mayhem Is (Buried) In Your Auto Policy

2011-03-01T09:13:00.010-05:00

We've all seen Allstate's "Mayhem" commercials. Pretty clever and somewhat humerous. The message is that mayhem lurks everywhere and an Allstate policy will sweep in and protect you. Here's the problem: Ohio personal injury lawyers like me have actually had occasion to read theirs and dozens of other auto policies (about as exciting as a dental cleaning, but it comes with the territory--it's what we do).

So let's test the accuracy of their marketing premise in the real world, borrowing from their theme.

I am an Allstate auto policy. You probably purchased me after seeing all of our clever commercials (no comment on how much we spend on advertising every year). You probably called an agent, who gave you a quote, asked you to fill out some paperwork, told you that you bought a "full coverage" policy, and I arrived in the mail weeks later. You stuffed me in the drawer with all your other "important papers."

But I am full of some mayhem of my own while I am sleeping in your drawer. Call it "fine print" mayhem. Here's what my fine print says: there's no coverage under my policy for "bodily injury to any person related to an insured person by blood, marriage, or adoption and residing in that person's household."

What does this mean? If you allow your son to drive your Allstate insured vehicle while you're a passenger and he wrecks the car, seriously injuring you, there's no coverage for his driving negligence, your lost wages, and your permanent injuries.

Basically it means this: if one family member wrecks the Allstate insured car and injures other family members, all Allstate "insureds," there is no coverage for anything but medical bills up to the limits of your Allstate "medical payments" coverage ( usually $5,000,assuming you bought medical payments coverage). So, if your family's medical bills are $200,000 take our $5,000 "med pay" coverage and multiply it by the number of family members with medical bills of $5,000 or greater and that's all we owe you. My little exclusion means no compensation for the rest of your family's losses.

Now here's what all the "Mayhem" commercials won't tell you. Many Ohio insurance companies, like Nationwide, Grange, Motorists, and Central Mutual don't have this exclusion! If you had one of those policies, all of your injured family's losses would be covered either under (1) the Liability or (2) the Uninsured Motorists' portion of the policy.

Mayhem can be sneaky, can't it?

To learn more about fine print exclusions in your policy before you ever need to use your insurance policy, visit our website
or our blog home page and order our FREE book: "Fully Exposed: How Ohio Insurance Companies Are Stripping Your Auto Policy."

Can You Make A Lost Wage Claim After An Ohio Auto Accident If You're Unemployed?

2011-02-24T14:25:00.020-05:00

The answer at first blush might be "No." After all, a logical question might be: "How can you have a claim for lost wages if you weren't employed at the time of your crash?"

YOUR LOST EARNING CAPACITY IS THE KEY (YOUR GLASS IS HALF FULL)

What is "earning capacity?" It is income generated if a person employs his or her assets to their full capacity. Most all adults have some capacity to earn money. For example, let's assume you've been a medical technician at a local hospital for five years. You just lost your job due to cutbacks and you're in the process of applying for a new job. Duing this interim period, you're hit at an intersection by an 18 wheel rig that runs a red light. Given your injuries, you're essentially taken out of the job hunt for 6 months.

Do you have a legitimate claim with the trucking company's insurer for lost income even though you were not employed at the time of the collision? Ohio law allows injured persons to recover for their lost earning capacity. Here is the formula Ohio courts will use:

The measure of damages for impairment of earning capacity is the difference between the amount which the injured person was capable of earning before the injury and what he/she is capable of earning after the injury.

PROVING IT

Sounds great in theory but how do you get an insurance company to recognize/honor a claim? First, your past earnings history needs to be established as a baseline. Second, your treating physician needs to state in the medical records or in a report the time frame you would have been reasonably ordered off work due to your injuries, had you been working.

And, finally, you should make a concerted, good faith effort to find employment, whether it is related to your occupation/field or not, as soon as you are physically able. You need to show that you are doing everything possible to find work.

There may be room for argument as to the amount of your claim under these circumstances, but it does not mean you're entitled to zilch, especially if your earnings history was good and the timing of the crash was bad.

If you're "going it alone" after your collision and relying upon the insurance company to "treat you fairly" in this instance, you can be sure they'll tell you: "You can't make a lost wage claim because you weren't employed at the time of the collision." Not necessarily true. But don't expect the adjuster to explain the nuances of lost earning capacity income to you. My guess is there's some section in the "insurance claims handling procedure manual" that prohibits any discussion of this.

Read This If You're Thinking About Handling Your Ohio Auto Accident Claim By Yourself

2011-02-15T10:06:00.004-05:00

This is what YOUR OWN auto insurance company can do to you after you're in a crash that's not your fault. Client's son, a passenger in a car, is seriously injured in a crash due to a friend/driver's negligence. Both the driver and the son's family have the same insurance company.

As a passenger in the friend's vehicle, the boy is eligible for medical payments coverage of $10,000, the limits of the driver's medical payments coverage. The insurance company pays the $10,000 limits on the first volley of bills. The boy's bills, however, greatly exceed $10,000.

The boy's family also had $5,000 in medical payments coverage on their family auto policy with the same company, meaning that there was an additional $5,000 immediately available to pay for additional bills. Problem: the insurance company never notified the family of the availability of this additional coverage under their own policy.

The insurance company holds on to the claim for over 1 year. No offer of settlement is made, despite promising to "work with" the family on resolving the claim. In the meantime, medical bills are pouring in, and, eventually, the family is turned over to numerous collection agencies, who are hounding the family for payment.

After all the frustration and delay, they hire me, and my first question to them is: "Were you even told by your insurance company that you were eligible for an additional $5,000 in coverage to pay some of these additional bills?" "Nobody told us any of that" is the response.

I immediately fire off a letter to the insurance company asking if they notified the family of the additional coverage, and it is admitted that not only was the coverage available, but it should have been offered. The ball was dropped, pure and simple.

Or was it? This is what can happen when folks with no experience in the nuances of insurance coverage or handling their own injury claim are left to deal with an insurance company or an adjuster with hundreds of claims. Perhaps this additional coverage simply got overlooked. But here's the ultimate problem: insurance companies often view the claims process as an adversarial relationship, even with their own insureds. It is not a relationship that lends itself to them asking questions like: "How can we help this family get through this" or "How can we be fair to them?"

More likely than not, their sole question is: "How can we get rid of this claim with paying the least amount possible?" That does not make them evil; it's their business plan. And it works. Just ask yourself: how many insurance companies went belly up in the worst economic meltdown since The Depression? When suspicion and saving money on a claim are motivating factors, and when nobody is truly looking out for the injured person's best interests, things like failing to notify insureds of additional coverage(THAT THEY PAID FOR) happen. And in this case, it was inexcuseable.

If the family was properly informed of this coverage over a year ago, many of these straggler bills would have been paid, with no bad implications for their credit rating. The take away lesson here is that if you're going to "go it alone" with an insurance company, you do it at your peril...

Bratz Sues Mattel For $1 Billion Over Barbie Doll Wars...While Congress Debates A $250K Cap In Medical Malpractice Cases

2011-02-07T16:37:00.012-05:00

I couldn't make this up if I tried. Looks like Barbie is about to be hauled back into court in the latest nauseating sequel of a never ending legal war pitting Mattel versus the maker of the rival "Bratz" doll. I wrote about the original "Barbie v. Bratz" legal skirmish ("Doll Wars") here. Round one went to Mattel/Barbie, which was awarded a $100 million jury verdict against MGA/Bratz because MGA misappropriated ideas for doll designs from Mattel.

Well, get ready for "Doll Wars II-Bratz Girls Strike Back." According to Courthouse News Service, MGA/Bratz is now suing Mattel for $1 billion, claiming violations of Antitrust laws and other evil corporate misdeeds. According to the lawsuit:

The Barbie doll was so threatened by the success of the Bratz doll that Mattel launched an abusive campaign to "Kill Bratz," violating antitrust laws and suing MGA Entertainment "to death," MGA claims in Federal Court. So virulent was the attack, MGA claims, that Mattel used industrial spies with false IDs, intimidated and threatened Bratz vendors, and "spread press releases that Bratz sexualizes girls and that Bratz dolls say the 'F' word (which they do not)."

Did I mention that nobody could really make up this stuff? What's more, MGA alleges that Mattel spent $270 MILLION in attorneys fees to destroy MGA and "kill Bratz" with a scorched earth litigation strategy.

I couldn't help but juxtapose the latest Doll Wars legal skirmish against the latest push in Congress to limit malpractice victims' recovery to $250,000. So let's juxtapose, shall we? Never ending billion dollar lawsuits, and $270 million in attorneys fees dedicated to denigrating plastic dolls that carry neat little outfits and that may or may not throw F bombs. Meanwhile, if a doctor mistakenly removes a woman's non-cancerous breast, or a hospital mistakenly overdoses a child and renders her comatose, either's lifetime of misery is liquidated to $250K.

What do we call this current state of affairs? The way things ought to be, according to The Chamber Of Commerce. After all, we need to reign in malpractice lawsuits and all those predatory lawyers, right? But when it comes to corporations hiring armies of lawyers to sue each other into oblivion, we need a robust, hands off legal system so businesses can fully enforce their contract and property rights. Sounds great if there's an "Inc." after your name. But for all you "ordinary folk" out there who fall victim to malpractice, you need to sacrifice your rights and your recovery for the collective good of society. Consider your diluted legal rights an act of patriotism that will create jobs. This is what The Chamber is selling right now with the $250K cap that Congress is considering.

No word yet on whether Barbie or any of The Bratz Girls will testify at trial. My advice is to avoid the skimpy outfits, wear muted colors, and avoid the F bombs when taking the stand. I'm sure both of them will get their days (or should I say years) in court. Malpractice victims? The line from an old Wendy's commercial comes to mind: "Step aside."

Finally, A Conservative Politician Speaking The Truth About Medical "Tort Reform"

2011-02-01T11:37:00.005-05:00

Hear that sound? It is, FINALLY, the rush of fresh air clearing the room of a stale, stenchy debate over medical "tort reform" that has festered for too long. Former Senator Fred Thompson has weighed in on the fallacy of the medical/insurance industry's never ending fixation on limiting the rights of Americans through restrictive caps on damages in medical malpractice cases.

In his op ed piece, he cuts to the heart of the "medical tort reform" debate: that government imposed caps on damages are anything but a "conservative" principle:

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal

.

You have to wonder why hard core conservatives or Tea Partiers, who supposedly revere The Constitution and espouse "limited government," seek to impose one size fits all caps on damages in all fifty states, and trample the Seventh Amendment right to trial by jury. As a matter of conservative principles and logic, hard caps simply make no sense.

So why are Republicans making federally imposed caps the centerpiece of their health care reform? He subtly hints at the reason:

"I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong."

Translated, the American Medical Association, The Chamber Of Commerce, and the insurance industry have been clamoring for it for years, and they heavily support the same politicians who are currently pushing for these laws.

So much for "conservative values" or the sanctity of The Constitution. Instead of adhering to either, the "cap your rights" gang in Congress is borrowing a slogan straight out of the movie Jerry Maguire: "Show us the money...and we'll give you what you want."

Warning: Sago Palm Plant May Be Deadly To Children And Pets

2011-01-31T11:22:00.003-05:00

If you have small children or a family pet, you may want to read this. Scary.

A colleague of mine has recently reported that a decorative indoor Sago Palm plant, purchased at a Home Depot, was responsible for liver toxicity in a dog when the dog ate some of the plant's nuts. The vet bill exceeded $10,000.

Bad enough if you have a family pet. But the real shocker is that this plant is extremely poisonous to humans as well. Just google "sago palm toxicity" and you'll find lots of information, including this:

The plant is called a Sago Palm and its highly poisonous to both pets and humans. A chemical in the plant called cycasin is toxic and often causes permanent liver damage as well as neurological damage if enough of the poison is absorbed by the body. The seeds are the most poisonous part of the plant and the effects on humans are seizures, coma and death.

Of course you and I wouldn’t just yank off a chunk of this plant and gnaw on it but the seeds are colorful so if you have kids and Sago palm in your yard educate them on the danger or get rid of the plant.

Another article suggests that dogs are strangely attracted to this plant as well.
My colleague, Ray Critchett, poses a good question: "Should companies and stores who sell this plant be required to place a warning label on them to the effect that they are poisonous to pets and children?"

Those of us who have raised small children or have pets know that both can put things in their mouths or ingest anything within reach in a split second, even if closely watched. I recall, fondly now, our childrens' attempts as toddlers to eat the dog food in the bowl on the kitchen floor.

Dog food is one thing. A plant seed or nut that can kill children and pets is quite another. And from what I've read, there are little to no warnings accompanying these plants. This is stupid and irresponsible from both a safety AND a legal standpoint.

I can't imagine losing a child or the family dog over a simple plant in the corner of the room. So spread the word.

Dennis Kucinich's Olive Lawsuit: Is It The Pits?

2011-01-26T16:54:00.004-05:00

Here we go again...more fodder for the lawsuit bashers...

CNN is reporting that Dennis Kucinich has filed a $150,000 lawsuit against a cafeteria for a rogue olive pit that he bit into as he was eating a sandwich wrap. Apparently he needed some dental work and some surgery as a result of the dental trauma.

We all know what is going to come from this, Conan, Letterman, and Leno jokes aside. Groups like The Chamber Of Commerce will jump on this like hyenas on a carcass, like they always do, when one of these lawsuits hits the media. They'll assail it as another example of someone trying to hit the "litigation lottery" and drag the lawsuit papers around as another poster child for much needed "legal reforms."

Unfortunately, Mr. Kucinich has given them some gratuitous ammo with this lawsuit. But let's break this down as best we can from the scant information we know. First, there is a possiblity that the pit should never have been in the wrap he was eating. Let's assume it had no business being there and was a mistake.

If he did require extensive dental work due to this mistake, certainly he would be entitled to recover the cost of the procedures, and the pain and inconvenience associated with it. I think most people would agree with that. So far, so good, but...

Where this lawsuit will start to smell, however, is the claim in the complaint for $150,000. First, there was no need to ask for a specific amount of money in the complaint. His attorneys could have included a short paragraph in the complaint that requested "that he be awarded a sum of money to compensate him for the past and future costs of any necessary medical or dental expenses, and the the pain and inconvenience associated with the dental trauma and the multiple procedures" and left it at that. In fact, in many states, like Ohio, we are prohibited from asking for an amount in the complaint that exceeds $25,000.

My guess is that if a specific monetary amount was omitted from the complaint, it would not have made news on CNN's website. Or, if it did, the story would have died as soon as it surfaced.

But the demand for $150,000 will be the proverbial gas can that ignites a fire of criticism, and will become fodder or a symbol of yet another "excessive lawsuit." Totally unnecessary in my humble opinion, as the hit Mr. Kucinich will take from it, and the misperceptions of our legal system it will generate, far outweigh the utility of asking for that amount. This is especially true given the fact that the amount sued for often times is not reflective of what the case may settle for, or what a judge or jury returns in the form of a verdict.

I don't know who said "All press is good press," but with any maxim, there are usually truckloads of exceptions.

I'm sure I'll hear about the "olive pit" lawsuit, right next to the "hot coffee" case, when I pick my next jury.

The Chamber, Lawsuits And Jobs: If Only The Truth Mattered...

2011-01-12T16:11:00.020-05:00

Every Superman has his kryptonite. Take, for example, the monolith known as The U.S. Chamber Of Commerce, considered to be Superman by some and a bully by others.

"Jobs, not lawsuits." This is their mantra. According to the StarChamber, our legal system kills jobs. Less lawsuits equals more jobs.

It's a simple and attractive premise. It's an easy message for The Chamber to disseminate in a never ending cycle of rinse, spin, and repeat through website videos, press releases, "reports," and e-mail alerts.

Their solution? Massive legal "reform." It's an "all you can eat" appetite for reform with a wish list as long as the Kardashian kids' Christmas list. At the top of the list are one size fits all, government imposed caps or limits on damages you can recover if you're maimed by a drunk driver, have the wrong organ or limb removed during surgery, or ingest tainted food or drugs. "Govermnent--bad. Government imposed legal reforms--good."

Now for the kryptonite. For the last decade, The Ohio Legislature has done the Chamber's bidding. It has passed lawsuit limits on all Ohio personal injury lawsuits, including nursing home, medical malpractice, and products liability cases, and even cases where Ohioans are injured by drunk drivers. We also have punitive damage limits in all cases too. A "model" of tort reform that the Chamber would be very proud of. The Ohio Supreme Court has upheld the constitutionality of virtually all of these reforms.

And now we also have some solid court statistics coming from The Supreme Court Of Ohio. And the numbers are illuminating:

STATISTICAL BREAKDOWN OF CIVIL CASES IN OHIO COURTS

2009
Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 109,346 14.52%
Foreclosures 99,199 13.18%
Products Liability 263 0.03%
Professional Torts 1,705 0.23%
Civil Torts 27,666 3.67%
Workers' Comp. 8,698 1.2%
All Other Civil Cases 506,007 67.21%
Total Civil Cases 752,884 100.00%

(Sorry, but I could not get these columns to line up and gave up after 47 or so attempts)

Compare these numbers to 2002, shortly before The Ohio Legislature passed the beginning of many of The Chamber's lobbied for reforms. Notice the HUGE drop in "personal injury" type lawsuits (in bold) in 2009 as compared to the "pre-reform"
numbers in 2002:

Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 106,313 16.36%
Foreclosures 59,719 9.19%
Products Liability 629 0.10%
Professional Torts 3,448 0.53%
Civil Torts 45,020 6.93%.Workers' Comp 8,707 1.34%
All Other Civil Cases 426,069 65.56%
Total Civil Cases 649,905 100.00%

So there's no confusion, here are some definitions of the types of cases shown above:

Civil Torts – Suits brought by a party to recover for personal injury or property damage. These do not include claims based on a breach of professional (e.g. medical or legal) duties by professionals, and also exclude claims for products liability, workers’ compensation, and claims for civil rights violations.
(This would be your average auto accident, slip and fall, etc type lawsuit)

Eviction/F.E.D.* – “Forcible Entry and Detainer.” A summary proceeding initiated under R.C. 1923 or 5321 for restoring possession of real property to one who is wrongfully kept out or is wrongfully deprived of possession, including suits by landlords to evict tenants.

Foreclosures – Actions involving or arising from the foreclosure of property, usually resulting from an alleged default by a homeowner on a mortgage.

Other Civil Cases* – Civil actions not included within any of the other listed categories, including contract claims, small claims suits, and suits designated at “other civil” by the county, municipal, and state courts.
(For example, one business suing another business for a breach of contract, for example)

Products Liability – Actions based on an allegation that a product with manufacturing, design, or warning defects caused personal injury or property damage.

Professional Torts – Civil tort actions based on the alleged failure of a professional to act in accordance with a professional standard of care.
(Not limited to medical malpractice cases, and would include claims against architects, engineers, accountants, attorneys, and other professionals)

What do the numbers tell us? Foreclosures, kicking people out of leased properties, and business to business lawsuits constitute about 81% of all civil lawsuits. Since the enactment of endless "reforms," all personal injury lawsuits in Ohio have decreased by approximately 50%!

Ohio's population is approximately 11 million. Yet, we had a mere 1,705 professional liability lawsuits and a paltry 263 products liability suits in 2009. Does this sound like a litigation explosion or a state bogged down with "too many lawsuits?"

Conclusion: personal injury lawsuits are trending down precipituously every year. But according to the Chamber, if lawsuits have dramatically dropped, it stands to reason that jobs should be exploding in Ohio, n'est pas?

So where are all the Ohio jobs created by tort reform? How does "less lawsuits, more jobs" sound now? Ohio's economy is reeling, unemployment has never been higher, and the dreaded "personal injury lawsuits" are dropping significantly every year.

Perhaps the Superman analogy was a bad one after all. The more I think about it, The Chamber's drivel is more akin to Linus waiting for The Great Pumpkin.

In the meantime, our legislature has traded your legal rights for this rickety promise. So put your heavy coats on as you sit in the pumpkin patch waiting for all these jobs. It gets cold here in the Fall, and from the sounds of it you're going to be there a while...

California Insurer's 59% Rate Hike Exposes Fraud Of Proposed Malpractice "Reforms"

2011-01-09T21:32:00.006-05:00

I think it was Mark Twain who said: "A lie can travel twice around the world before the truth can get its pants on in the morning."

In the recent health care debate, Republicans have maintained, as the centerpiece of their proposals, that enacting government imposed, one size fits all "caps" or limits on malpractice lawsuits will dramatically decrease health care costs and premiums. In broken record fashion, they have repeated this canard, as if federalizing state malpractice laws(the very government intervention they otherwise loathe at every turn), is the magic elixir that will solve our escalating health care costs.

Except that there's one major hole--better yet a crater--with this argument. Better yet, there's 32 holes to be exact. At least 32 states have already passed caps on malpractice damages that victims can recover. So we have some history and some data to test this insurance friendly hypothesis.

The biggest crater of all is California. In approximately 1975, it passed a $250,000 cap on "non-economic" or pain and suffering damages. Translation: lose your limb, an organ, or the ability to walk, talk, or function, and your lifetime of misery is reduced to an arbitrary $250,000.

California's caps are often cited as a "model" reform for politicians who seek to impose government imposed caps on all 50 states. So it stands to reason: if there is a direct relationship between capping malpractice damages and health care costs and premiums, why on earth is Blue Shield, California's largest insurer, seeking to hike premiums by 59%? Here's their official reason:

"...our individual market medical costs are rising rapidly due to higher provider prices, increased utilization, and the fact that healthier people are dropping coverage during a bad economy..."

That, plus good old fashioned greed, and friendly laws/regulations allowing such rate hikes, is probably the real motivation. But this story proves what those opposed to the magic wand of lawsuit caps have been arguing for years: the health care cost conundrum is due to a multitide of factors, the main one being that people are living longer, and therefore are utilizing health care resoures longer.

I have yet to hear one person in the media ask any politician this simple question: "If caps on damages are the answer to dramatically reducing health care costs, can you show me one state where health care costs have been reduced by one penny in the 32 states that have passed these caps?"

Anyone? Anyone? Mr.Buehler.....? Yet, this lie is repeated over and over on Sunday talk shows and on the floor of Congress as if it is a truism. Meanwhile, California consumers are about to get soaked in one of the most classic "bait and switch" tactics around right now: caps and reduced health care costs.

Drive Thru Barn Not The Greatest Business Model...And A Lesson About The Importance of Uninsured/Underinsured Motorists' Coverage

2011-01-06T21:58:00.005-05:00

From the "incredibly stupid idea" department...

According to a recent Texas lawsuit, Don's Fly-Thru Beer Barn was a drive-in bar "complete with carhops where drivers enter the establishment by driving their vehicles into a building and then they are sold alcohol while still inside their car." Worse yet, patrons were "allowed to drink and drive right out of Don's Fly Thru Beer Barn with their alcoholic beverages in hand."

Brilliant business model, eh? (It's up there with the "Bag O'Glass" childrens' toy made famous by the Saturday Night Live skit with Dan Aykroyd aka "Irvin Mainway"). All kidding aside, a patron there was allegedly sold a "30 pack" of beer (seriously-there is such a thing?), drank enough of it there to get hammered, and drove away...killing one motorist and paralyzing another.

MANY SUSPECT BUSINESSES LIKE THIS DON'T CARRY INSURANCE..

A lawsuit waiting--no SCREAMING--to happen, and for good reason. If the facts of the lawsuit are true, this despicable establishment should be sued out of existence and shut down. But here's the problem. Most likely, this joint probably had no liability insurance to cover its stupidity. And I'd also wager that neither did the drunk driver. Thus. the families could be stuck with a 7 figure, uncollectible verdict against these miscreants.

The teaching point here is that there are many irresponsible businesses out there like drive thrus, bars, and strip clubs, who sell alcohol irresponsibly to people who are equally moronic when they get behind the wheel. The only way you can protect yourself as a motorist is to buy as much uninsured and underinsured motorists'(known as UM/UIM) coverage as you can afford to buy. This is the most important coverage you can buy for your auto policy. Why? Because it allows you and your family to pursue a claim against your own company when someone with little or no insurance injures you.

THE ONLY ONE TRUE WAY TO PROTECT YOUR FAMILY (AND DON'T EXPECT YOUR AGENT TO EXPLAIN THIS THOROUGHLY TO YOU...)

Most insurance agents do a poor job of emphasizing the importance of this coverage. And here's a secret you won't likely hear from your agent: you can probably upgrade your standard, lousy "full coverage" $100,000 auto policy to $500,000 or even $1 million in UM/UIM coverage for about $150 per year.

That's about half the cost of a monthly 30 pack...

Why Preparing Clients For Deposition Is Like Making Pancakes

2010-12-28T12:03:00.005-05:00

What is the one HUGE secret for making fluffy pancakes that rise like they should, as opposed to those paper thin, dense duds devoid of any texture or sponginess? And, by the way, as a long time weekend pancake slinger, this secret applies to homeade recipes (my usual choice) all the way down to the instant "just add water" mixes.

The secret? Don't overwork the batter and DO NOT stir the lumps out of the mix. Simply add enough liquid (per whatever directions you're following) to dissolve the dry batter and gently fold the liquid in. Within a few seconds, you'll have enough consistentcy to be able to spoon or ladle a lump-filled blob of batter onto your griddle or into your pan. And then watch them slowly puff up and rise, in airy like, glorious fashion.

Not too long ago, I came to the conclusion that preparing our clients for deposition is a lot like making pancakes. We hit clients with all these pre-deposition rules like "don't guess," "don't ramble," "answer only the question you're asked and don't volunteer anything," etc. I could go on and cite about 15 more "rules" we've all learned over the years and have bludgeoned our clients with from time to time.

But in the process of our drill seargant/paranoid recitation of all these "rules," we can inadvertantly turn our clients into robots at their deposition. We've wrung all the humor and charm right out of them. They come off flat, worried, walking on eggshells for fear of making one of those dreaded "mistakes" we warned them about over and over. And, occasionally, we have the audacity to wonder why our clients' pre- deposition charm and endearing qualities did not come through at their deposition.

Simple: we overstirred them, just like the lifeless, tasteless pancake where the batter was overworked to death in the bowl. We failed to step into their shoes and realize that, from their perspective, a deposition can be a scary process. They want to go through a 2-3 hour question and answer session with a strange (as in unknown OR odd, take your pick) lawyer about as much as their upcoming root canal or colonoscopy. At least with the latter you have some form of sedation, which may drop a deposition to third place on the list...

Look, going over depositon rules is important and should not be ignored. But we as trial lawyers also need to recognize, and appreciate, that there is a class of clients whose charm, pleasant demeanor, grace, humor--whatever those qualities may be--need to come forward and be seen by the other side. They have wonderful stories to tell, and yes, they may ramble or break a few of our precious rules to remember, but creating a "roboclient" from scaring the pants off of them is infinitely worse in my opinion.

Bottom line: every one of us comes with "lumps" in some form. By deposition time, you need to know whether your client will need a lot of "stirring," or just a little. Counterintuitive as it may seem, both with clients and pancakes, consider leaving some of the lumps in. Remember: you can send a stack of flat pancakes back to the kitchen, but you're stuck with a flat transcript and client impression.

Keep Playing Your Music...Whatever It Is...

2010-12-20T12:12:00.003-05:00

Writing a blog can sometimes be like the job description for the Dunkin Donuts dude ("Time to make the doughnuts!") After plugging along with mine for close to three years now, I have a newfound appreciation for writers of all stripes, cartoonists, comedians writing daily copy, journalists--anyone who produces the written or spoken word under the rigors of a regular deadline.

With my "5 Horsepower" (made in the U.S.A., I'll have you know) blog in a small corner of the Internet, sometimes there's not much to write about from a legal standpoint. Some of it can be rather boring at times. And, sometimes, you just don't feel much like writing at all. You hit a wall, a lull, and sometimes you wonder as you write: does anybody really care about what you're pontificating about anyway? Does it really contribute in any meaningful way to The Internet world of knowledge, or is it merely a click or a glance in passing by surfers constantly moving and trolling for whatever they're looking for? An online "drive by" akin to a glance in a bar or an airport.

Hell, nobody pays me to write it. I do it because I have this wierd idea that there are still folks in need of legal services who may appreciate information that may answer their questions or guide them in the right direction or arm them with questions to ask any attorney before hiring them, in a sea of mass advertisers proclaiming to "care about you" in cheesy radio and TV spots while you're simply trying to watch a ball game.

It's times like this that you sometimes need a little push in the right direction, or be handed a nugget of inspiration in some strange, random place. Today, while searching aimlessly for "interesting legal news," (think "jumbo shrimp," "hot water heater," or other appropriate oxymorons) I found an interesting article about Beethoven by Robert Kahn, entitled "The Man." Strangely enough, I found the article on a legal news website of all places. As I read it, this passage at the end really grabbed me:

Bringing people comfort is hardly what artists choose to do anymore. It's not what Beethoven chose to do. But he did it nonetheless. He's been doing it for nearly 200 years after he was dead, and he'll be doing it so long as there is a human race that remembers how to play Beethoven.

Arthur Rubinstein explained it in a master class I attended 35 years ago. Most artists who give master classes give instruction: they interrupt; they get right in there. But Mr. Rubinstein, 90 years old, just sat and beamed as a procession of young pianists knocked the stuffing out of the piano for an hour. Then Mr. Rubinstein, beaming like a cherub, stood and walked slowly stiffly to the podium and said these few words to the packed auditorium: "You must keep playing music. When people get old, sometimes they get sad, and music is the only thing that can console them. So you must keep playing music."

The wisdom of that simple statement was not lost on me. I thought of so many of my elderly clients, who've been injured in some form, and now face the argument from an insurance company that their injuries are to be cheapened or lessened because they're "up there in years." They may have lost a spring or two in their step, but they continue to play their music as best they can, which may make it sound even sweeter to them and their audience because of the ticking clock of time and age.

But this lesson applies to all of us, really. No matter what you do, whether you're a teacher or a chef or grinding it out in a small business in a lousy economy, if things seem a bit overwhelming, Mr. Rubinstein's advice is golden: just keep playing your music. Whatever it is.

And that goes for you too, Neil (Young, that is--one of my personal music heroes). He just cranked out another album at age 65. So no matter what music you play, "Keep On Rockin In The Free World." And don't be afraid to hit a few wrong notes along the way...

Happy Holidays!

Employers' Liability For Drunk Employees Who Cause Accidents

2010-12-08T16:47:00.003-05:00

Something to keep in mind as the holiday season and the "company Christmas party" approaches...

Facts (unfortauntely very tragic): an employee with a known history of drinking leaves his place of employment and causes a horrific crash about 9 miles from the office, killing three people. His blood alcohol limit is 0.43, five times the legal limit.. Apparently he also admits to his supervisor to drinking earlier in the day.

The man who lost his wife and two small children sues the driver and his employer, claiming they knew or should have known that the employee/driver was drunk, and should not have allowed him to drive. The employer offers the testimony of seven witnesses who claim that they had no reason to suspect he was drunk.

A Michigan jury will decide this issue this week.

What liability would an Ohio employer have when intoxicated employees negligently cause a crash under similar circumstances? The answer--it depends. For example, if the negligent employee was in the "scope of employment" at the time of the crash, the employer would be liable for the employee's negligence. However, it is not always clear whether an employee is in the scope of employment.

But even if the employee's act is outside the scope of his or her employment, an employer can be held liable in Ohio for negligent entrustment of a motor vehicle if the employee was incompetent to drive and the employer knew or should have known about it. However, in order to "entrust" a vehicle to another person, the employer would have to have some sort of ownership interest in the vehicle.

Given what happened in the Michigan case, employers would be wise to take action if they suspect that employees entrusted to drive company cars or even their own vehicles are impaired. No matter what the intracacies of the law are here, it's just common sense.

Trucking Company Blames Accident Victim--And Loses

2010-11-29T20:44:00.006-05:00

This recent case shows the depths to which trucking companies will "blame the victim" in personal injury lawsuits. Here's what happened: a commercial truck crossed the median of a major interstate and crashed directly into the path of another truck, seriously injuring the second driver. The injured truck driver sued the truck driver who crossed the median and his trucking company/employer.

One of the trucking company's major defenses at trial was that the injured driver "did not slow down to avoid the accident and that his vision was impaired due to uncontrolled diabetes." This, despite the fact that the offending driver apparently fell asleep at the wheel and falsified his log book to cover up the fact that he had driven too many hours in violation of federal safety regulations.

The jury apparently saw through this defense and returned a $3 million verdict. I'll bet the injured driver never dreamed that his case would go to court when a large truck careened across a highway median and changed his life. Unfortunately, a "blame the victim no matter what" strategy is more common than you would think, especially when the injuries are serious and the insurance company is desparate to minimize its legal responsibility.

My guess is that, in the end, their "let's throw a bunch of stuff against the wall and see if some of it sticks" strategy backfired and only angered the jury, which sent the appropriate message with their verdict. I don't know who said it, but it's true: the American jury is one of society's best "attitude adjustment" mechanisms in a democratic society.

Why Does Wrong Site Surgery Continue To Happen?

2010-11-24T11:07:00.007-05:00

In "Groundhog Day" fashion, it seems as though we can't go but a few weeks and, bam, there's yet another medical malpractice lawsuit claiming that a hospital/ surgeon operated on the wrong patient or wrong body part. This time, "St. Louis University doctors mixed up their patients and did the wrong surgery on one man's spine," according to a recent lawsuit filed against the hospital.

Wrong site surgeries are on the rise, according to the National Institutes Of Health. In fact, wrong site surgery has been gained enough notoriety to be given an acronym--WSS (it's a good rule of thumb that if something has its own acronym, it's a big deal).

The vexing problem of wrong site surgeries confirms one of the ugly downsides of health care delivery: it is a volume business within a complex system.. Consequently, patients will fall through the cracks despite the best protocols, policies, and safety procedures. The best hospital safety policy is useless if the surgeon or the hospital is in a hurry to move patients, in cattle like fashion, for whatever reason.

I hear politicians squawk all the time that we have the best health care system in the world. In many respects, we do. So why do these 100% preventable medical errors continue to happen? For all the hue and cry about doctors practicing "defensive medicine," what do hundreds or thousands of wrong site surgeries each year do to health care costs? Is continued malpractice a driver in the high cost of health care? The powers that study health care policy and "reforms" continue to ignore the proverbial 800 pound gorilla standing in hospital hallways and operating rooms across the U.S: that by actually reducing incidents of malpractice, malpractice costs, and therefore health care costs, can be reduced.

Reducing malpractice lawsuits by reducing malpractice...now there's a novel idea...

Doctor's Artichoke Lawsuit Is One To Gag On...

2010-11-19T13:56:00.008-05:00

Even Stymie knew how to eat an artichoke--or better yet how NOT to eat one.

Apparently, however, this life lesson was lost on a Florida doctor, who ordered an artichoke at a restaurant, and ate the entire thing.

Not suprisingly, he developed severe abdominal problems, and is now suing the restaurant for failing to warn him how to properly eat an artichoke.

This is a stupid lawsuit and one that should and will go nowhere. Although lawsuits like this are not the norm, the media loves them for their zany and headline grabbing effects. Somewhat ironic is the fact that it is a physician who's bringing this lawsuit. Physicians as a group are generally "anti-lawsuit" and groups like The AMA have spent millions lobbying for relief from medical malpractice lawsuits, and tighter sanctions for what they deem to be "frivolous lawsuits."

Which leads me to my working definition of a "frivolous lawsuit" in the eyes of the public: one other than my own. My guess is if this same physician had read about someone else choking down an entire artichoke, he would have laughed it off as frivolous. Of course, this is only my opinion. I could be wrong. What do you think?

More than anything else, I'm thrilled that I found a way to work a Little Rascals/Stymie clip into a legal blog about an artichoke lawsuit, no less! I guess this means we'll see a Petey the dog clip if I can just find a case about a dog bite...

Why Vigilante Justice Is No Justice At All (And Why Tort Reformers Should Fear It)

2010-11-18T13:21:00.009-05:00

This sad story about a molestation victim taking matters into his own hands got me thinking about vigilante justice, and how our changing legal landscape, particularly the "tort reform" movement, may be encouraging it.

In 1995, William Lynch, who was 9, and his younger brother, were sodomized by a priest. Last month, Lynch, 44, entered a nursing home where the priest resided and beat the tar out of him.

Two points of interest: first, the priest was not charged criminally because the statute of limitations had run. Second, in 1998, Lynch and his brother settled their molestation claims against the Catholic Church for $625,000. After the settlement, Lynch continued to have major psychological problems, and even contemplated suicide. Understandably still resentful over what this priest did to him, he took matters into his own hands. And now he faces criminal charges for the beating.

The first reaction to this tragic story is almost universal: to identify with Lynch. After all, who wouldn't want to maim or even kill the SOB who did this to you, or your children if they were the victims of such a despicable act? We all get that. But it's an emotional reaction; a reaction as natural as breathing, and probably as visceral as any other emotional feeling or state of being, like love, for example.

But it raises a larger question: should we condone vigilante justice in a civilized society? American society is founded in large part on the rule of law. Translated, our societal expectation is that our Constitution and criminal and civil justice system offers an orderly mechanism for punishing the guilty, resolving disputes, and holding wrongdoers accountable for the harm they cause. It is the societal glue that holds us together by deterring mob rule, and aggrieved parties from taking the law into their own hands, otherwise known as chaos. Indeed, when we read about reactionary mob rule in Third World countries, our predictable reaction is one of shock and suprise at the lack of order that leads to perceived injustices.

Where does "tort reform" fit into this picture? It is a well organized, multi- billion dollar movement, led by The Chamber Of Commerce, big business, the insurance industry, and medical groups, to restrict or even eliminate Americans' access to the court system in a wide array of mishaps. Examples abound, from financial fraud that devastates our financial freedom, to medical malpractice and medical devices or drugs that ruin our health. Because these wrongdoers and miscreants typically never see prison time for their misdeeds, our civil justice system is the usually the last resort--and the only remedy--for those harmed.

Due to a constant drumbeat of a well orchestrated, thirty year plus media campaign, the tort reformers (well heeled "organizations" and other "interested citizens groups" that are, in reality, astroturf groups funded by conglomerates) have successfully achieved most of their goals. Over 32 states have passed the crowning jewel of the tort reform movement: limitations or "caps" on what innocent victims of wrongdoing can recover in lawsuits. For example, if molestation victims sue in Ohio, their recovery as of 2005 and beyond would be limited to $250,000 for their lifetime of mental anguish and other psychological problems.

Unfortunately, within the next few years, we can expect to see more "reforms" passed in the form of national medical malpractice limits, and "loser pays" legislation. The collective weight of these legal restrictions will ultimately serve the second major goal of tort reform: to make it so difficult or so expensive for ripped off or maimed victims to sue that they say "to hell with it" and forego their diluted right to sue and hold these institutions accountable.

Bottom line: your "rule of law" is being co-opted and hijacked by muscled special interests. But there's a real toxic downside to this stench: as more individuals are left on the side of the road, unable to level the playing field with any meaningful legal recourse, I fear it will encourage an increase in vigilante justice. Is it wrong? Sure it is. And I hope I am wrong, but I see this as an unfortunate byproduct of a machine like movement that is, drip by drip, eroding our legal remedies like a thief in the middle of the night. You see, tort reform laws are spawning some other laws that are not yet officially on the "real world" books: the law of unintended consequences.

Vigilante justice makes for a good movie plot. Doesn't work so well in real life.

Attorney Advertising Reaching New Lows (In Fact, Going "Underground")

2010-11-17T16:26:00.005-05:00

Just when I thought attorney advertising was scraping the bottom of the barrel, we have a new entry to be ashamed of (more on that in a minute). But let's review the sad litany of embarrasing advertising the general public has been exposed to over the years: shameless "solicitation" letters sent to accident victims (along with self laudatory DVD's, refrigerator magnets and other goodies thrown in the packet for good measure),and cheesy and/or repulsive TV, radio, and phone book ads (many with the tag that "we'll get money for you" and other nonsense).

More recent entries into this swamp have included cookie cutter, canned websites and blogs horribly ghostwritten for the sole purpose of increasing Google rankings through repeated use of familiar phrases or "keywords."

But, alas, some genius has thought of a new way of sinking our reputation even further: attorney advertising on funeral home websites.

As attorney Eric Turkewitz aptly pointed out:

[it] made me think of the washed up lawyer played by Paul Newman in The Verdict, going to funeral homes to pass around his card, pretending to have known the deceased as he chased cases. But instead of standing in their parlors handing out cards, this company wants lawyers to hang advertising on their site where the bereaved might go in time of need.

Eric hit the nail on the head in concluding that "The bar for attorney advertising has been lowered to new depths. It now appears to rest six feet under."

It's a safe assumption that the overwhelming majority of us personal injury attorneys are appalled by this latest "marketing" scheme. Unfortunately, most of us are a "silent majority" on the seemingly endless and shameful ways some firms go about attracting new clients. But don't expect the "faux blogger" law firms to expose this idea for what it is. They're probably too busy signing up to put their "Questions about how your loved one died/call us today" patch on funeral home websites...

Insurance Companies That Want Your Social Security Number After An Accident--An Update

2010-11-15T21:51:00.007-05:00

Recently I wrote about insurance company attempts to obtain injury victims' Social Security numbers after an accident and why they want them.

The reason? To submit accident victims' Social Security numbers to a bunch of databases, including credit histories/ratings among other things (you might ask yourself: why would insurance companies want your credit scores as part or their investigation of your auto accident injury claim?)

A recent Ohio car collision case I handled shows how one sided and hypocritical insurance companies are on this issue. I recently represented a driver injured in an intersection collision. The at fault driver had low liability limits. Fortunately, my client carried ample underinsured motorists coverage, which permit injured persons to make a claim against their own insurance company if their injuries/claim exceed the at fault driver's liability limits.

A lawsuit was filed against the at fault driver, and also my client's insurance company, for underinsured motorists' benefits. When a lawsuit is filed, all parties have the right to send written questions, known as interrogatories, to each other.

So here's what happened. The at fault driver's insurance company sent my client interrogatories, one of which asked for her Social Security Number (which I objected to and refused to answer, because of privacy concerns and a lack of relevance to the crash or my client's injuries).

Now here's where it got fun: my client's insurance company sent similar interrogatories to the at fault driver's insurance company, and asked for her Social Security Number as well. What did the insurance company for the at fault driver do? They refused to divulge her Social Security number, claiming that it was irrelevant!!

See how it works in the insurance world? Demand the injured victim's Social Security number, but refuse to divulge the at fault driver's/their insured's Social Security number.

If they wanted to be fair and above board, one would think that insurance companies would divulge the same information on their negligent driver that they are seeking from the auto accident injury victim. That simple logic assumes, however, that the insurance claims process is a two way street and an even exchange of information. It is not, and insurance companies' hypocrisy on this issue proves the point.

The lesson? "Fair and above board insurance company" ='s "jumbo shrimp," "hot water heater" and other oxymorons.

Wrong Hand, Wrong Site Surgery--And The RIGHT Way To Handle This Medical Error

2010-11-10T20:04:00.003-05:00

Unfortunately, wrong site surgery is more common than we would like to believe. Approximately two years ago, surgeon David Ring operated on the wrong hand of a patient. Apparently, for reasons unexplained in the article, Dr. Ring recently went public with this medical mistake. Why is this so newsworthy now? Sadly,

Ring’s public admission is rare in a field that typically cloaks doctors’ errors in anonymity, if not secrecy. Patient safety advocates praised Ring’s seven-page mea culpa as a necessary step to reversing rising numbers of wrong-site surgeries and other errors.

How pervasive is the vexing problem of wrong site surgery?

In 2008, the most recent year with complete records, 116 wrong-site surgeries, up from 93 in 2007, were recorded by the Joint Commission, a national hospital accrediting agency. Preliminary reports logged 137 wrong-site surgeries from March 2009 through June 2010. That’s despite more than a decade of attention to the issue following the landmark 1999 Institute of Medicine report titled “To Err is Human.”

Dr. Ring is praised in the article for bringing this medical mistake to light, as he should be. This is the way totally preventable medical mistakes should be handled--with transparency. But I would disagree with any assertion that his going public with what happened is considered some sort of act of courage.

Admitting an obvious and indefensible medical mistake is not courageous; it is, simply, the right thing to do. As to the medical profession it may be considered courageous, but only because mistakes like this are often explained away, mitigated, or even justified as "system errors" or other euphamistic nonsense. A medical culture that discourages admitting error is the true root cause for the lack of coming forward and the transparency and honesty showed by Dr. Ring in this instance.

So give him a lot of credit for doing the right thing here. But the publicity this incident has garnered, and labelling it as an act of courage, says more about the current culture of the medical profession than anything else.

Bottom line: if a doctor makes a preventable medical mistake, just admit it and move on. That's why doctors and hospitals have malpractice insurance. When we get to the point that something like this is NOT newsworthy, the medical profession will have caught up to the rest of how society views personal responsibility and accountability.

The Real Effects Of Medical "Tort Reform"

2010-11-04T10:38:00.006-04:00

One of my favorite legal bloggers is Justinian Lane, who passionately writes about our civil justice system. One of his blogs is "TortDeform," which exposes the folly of the tort reform movement, and its true goal: to make it so hard to bring legitimate lawsuits against big business, insurance companies, and the medical industry, that ordinary individuals say "to hell with it," and give up. All to the benefit of these well heeled interest groups.

There's lots of data to support the idea that legal tort reform will do nothing to help our economy and create jobs (a tirelessly repeated canard of that movement) or bring down the cost of health care in America. But largely this falls on deaf ears. The tort reform movement is not about "data" or "facts." It is, at the end of the day, an orchestrated, well crafted perception: that we are awash in "frivolous lawsuits" that exact increased costs on all of us. It is a perception fueled by a multibillion dollar propaganda machine that parades random, goofball lawsuits as "Exhibit A" for what's wrong with our legal system.

Frequently lost in the tug and pull of perception versus facts/data is the human side of this debate, and how tort reform actually affects real people with legitimate, non-frivolous cases. These are the folks left on the side of the road (or better yet the ditch) in this one sided debate. Sometimes their words are more illuminating than "position papers" or the latest cooked data from The Chamber Of Commerce or the insurance industry. Recently, TortDeform posted a testimonial from a Texas malpractice victim. Ohio has passed similar "malpractice reform" laws, so the writer/victim's observations are particularly salient to what is currently happening in Ohio. The testimonial was so moving that I am reposting it here:

I have read some of the things on Tortdeform and would like to share our medical malpractice experience. My hope is that others will share their experiences. Perhaps, if enough experiences are shared, we can change public perception. Currently, that perception is that many are getting rich making frivolous medical malpractice claims, that juries give away huge amounts of money for the slightest thing, that this has a big impact on our medical insurance cost, and that it drives medical malpractice insurance so high that doctors go out of business. This perception fuels a cry for tort reform and is taken up by our politicians. The most common “fix” is to limit damages awarded. While this sounds good in theory, did you ever think what happens to someone who is actually a medical victim in this “reform” environment? The following is our “story”.

We live in Texas, which is touted as the "model" of tort reform for medical malpractice. My wife and I had planned our “dream” vacation. Before we left, she wanted to get a procedure (which she has had several times before) done on her spine to alleviate pain. Unfortunately the doctor messed up and she was left paralyzed on one side. She had additional complications which left her in constant pain, unable to walk without a walker, and then only a minimal amount. It is difficult for her to function and I prepare her food, bathe her, dress her, fix her hair, etc. Our life has totally changed.

When we explain what happened to our friends, one of their first responses is, “I guess you’ve sued and gotten a big award”? It seems so obvious to them. However, it’s not so easy. Our first issue was to find a lawyer. Expenses will be $50,000 - $250,000 to try the case. If the lawyer loses, this money comes out of his pocket. In 75% of the cases that go to trial, the doctor wins. So the lawyer’s not taking the case, unless he is very confident of winning. Second, there must be written expert opinion, from doctors in the same field as the plaintiff, who will testify to the malpractice – before the case can even get on the docket. So much for “frivolous” lawsuits!

We have already spent $45,000 out of our pocket (beyond what medical insurance covers). I estimate that over my wife’s lifetime we will need $1,000,000 to $1,250,000 to cover extra expenses. Experts in our case tell me that my estimate is low – it could well be double this. The lawyer’s fee is 40% of gross recovery plus expenses (and interest on those expenses).

As we proceed with the case, we are confronted with additional sobering facts. Today, doctors attend classes to learn how to shelter their assets (trusts, etc). Even if we do go to trial and win that two-million dollar award, the doctor’s assets are sheltered, he will declare bankruptcy, and the most we will get is the limit on his malpractice insurance - $750,000. In addition, medical insurance companies (and Medicare) have a little clause in their policy called subrogation. This means that if you recover money in a case, they will expect you to pay back (out of your recovery) all the money they paid for hospital bills, rehab, etc. Their first requests to us were for upwards of $300,000.

We are told we are pretty lucky. Following negotiation with the medical insurance company, and after lawyer fees and expenses, we stand to recover about $250,000. Still the feeling is bittersweet. This totally ignores the constant pain and suffering my wife experiences, her inability to function normally, and the likelihood that she will spend her last years in a nursing home when I am too old to care for her. Nor does it deal with the change in quality of life I have as a caretaker. I have no idea how we will meet the mounting financial strain - $250,000 is 12-25% of what we will need.

We feel we have been victimized twice - the first as a medical victim, the second by the judicial “tort reform” system. My lawyer says that our story is common place – in fact there are many worse than ours. To add injury to insult, I am told that we will be required to sign an agreement that we will not reveal facts of our case to the media. Again, an attempt to keep the real truth hidden from the public. While I have not yet signed such an agreement, I have kept names and details out of our story to protect everyone involved.

Again, I implore others to share their story in Tortdeform (without violating any legal agreements). If sufficient “stories” are revealed, perhaps public opinion will side with the victim, and more appropriate “tort reform” can occur.

Keep up the good work, Justinian...

Hospital And Doctors Who Removed Non Cancerous Testicle Not Liable Due To Legal Immunity

2010-11-02T10:53:00.008-04:00

Now here's some Texas justice for y'all. A Texas court recently ruled that a hospital is not liable for removing a patient's wrong testicle.
Here's what happened:

Safwat Kamel complained of an enlarged testicle in 2005, and Drs. Run Wang and Tiffany Sotelo performed surgery to remove the fluid around the testicle.
During surgery, Wang diagnosed the testicle as cancerous, given Kamel's history of colon cancer. Wang removed the testicle, and later tests proved it was not cancerous.

(Apparently they do not do pre-operative biopsies in Texas, which may have detected the lack of testicular cancer...so much for all the talk about doctors practicing "defensive medicine," like a biopsy, out of fear of endless lawsuits... just sayin...)

So, Mr. Kamel is absent one testicle and his lawsuit was dismissed despite the seemingly preventable malpractice here. Why? Legal immunity for state run hospitals in Texas. For those unfamiliar, legal immunity means that institutions like schools and cities are not liable for negligence. Like Texas, Ohio has loads of immunity for cities and schools (you can read all about it here), but has not adopted immunity for medical providers...yet. Last year, The Ohio Legislature considered a bill giving emergency room doctors immunity for negligence. The bill failed, but given yesterday's election, and the fact that one party now dominates both branches of the Legislature, the Governor's office, and The Ohio Supreme Court, one word comes to mind: lookout.

Expect an onslaught of physician and hospital immunity bills to be proposed in Ohio within the next few years. Lose your testicle or breast or other vital organ due to preventable negligence? Tough luck. Sorry for your loss. Get over it.

Apparently, now, everything's smaller in Texas. Including legal responsibility for medical malpractice.

Fumbling The Patient Handoff--One Of The Most Common Causes Of Medical Malpractice

2010-10-22T13:53:00.010-04:00

The patient "handoff" refers to when one physician or other provider assumes responsibility for the patient from another medical provider. Consider it an intersection of sorts, and is one of the most dangerous intersections for a patient for this reason: An estimated 80 percent of serious medical errors involve miscommunication between caregivers when responsibility for patients is transferred or handed-off.

In other words, the medical left hand frequently does not know what the medical right hand is doing. For example, a patient who has abdominal surgery and developes a post operative infection and pneumonia might be seen by a general surgeon, an infectious disease doctor, a pulmonologist, and a hopsitalist (an internist or general practioner provided by the hospital who serves as the patient's "family doctor" during the hospital stay). When you add nurses and therapists to the list, things can get confusing. Someone has to take responsiblity for ensuring that orders are established, followed and communicated from the transferring medical team to the receiving team.

Some of the most common problems: tests ordered and not performed, and tests performed but not communicated to the patient. These problems surface in both hospital and outpatient settings.

In fact, according to the study..."more than 37 percent of the time hand-offs were defective and didn't allow the receiver to safely care for the patient." That's a horrible batting average when the major issue here is simple communication.

FROM THE PATIENT'S PERSPECTIVE: ASK QUESTIONS....

Patients should not consider themselves simply mindless cogs in the wheel of a meandering medical vehicle. When there is a "team" in charge of your loved one, here are some questions to ask:

Who's in charge of the team here?
What tests have been ordered?
Who will be following up on the test results?
How long will it normally take to obtain the test results?
Who is going to report the results and when?
Will "negative" test results be communicated as well as positive ones?
Will we be receiving written confirmation of the test results?

This list is not exhaustive, but here's the point: get in the mindset of asking some basic questions, in a polite and non-accusatory fashion, to your loved one's medical providers. Given the hectic nature of busy hospitals, labs, and teams of professionals, and given an almost 40% patient handoff failure rate, the questions you may ask just may save your providers from themselves, thereby saving you from a preventable medical mistake.

Surgical Errors Continue To Be A Malpractice Problem...But Not Necessarily A Lawsuit Problem

2010-10-20T16:26:00.005-04:00

Placing a chest tube in the wrong lung. Operating on the wrong side of the brain. 107 surgeries on the wrong body part. 3 prostate removal surgeries on the wrong person. These are just some of the...get ready for this figure...27,370 incidents of surgical screw ups over a 6 year period, according to a comprehensive study released recently.

This didn't happen in some Third World country. Here's the jaw dropping part: this study was limited to Colorado physicians alone! According to one surgical expert:

...the surgical blunders reported in the study are probably "the tip of the iceberg," says the lead researcher, Dr. Philip Stahel, M.D., a surgeon at Denver Health Medical Center. The actual number of patient and site mix-ups is likely much higher, says Stahel, describing those mistakes as "a catastrophe."

Begs the question: if preventable surgical mistakes of this magnitude are occurring in Colorado alone, how many are ocurring nationwide?

How serious were these surgical medical mistakes? "Overall, one-third of the mistakes led to long-term negative consequences for the patient. One patient even died of lung complications after an internist inserted a chest tube in the wrong side of his body."

Now, the medical industry (and The Chamber Of Commerce, insurance and pharmaceutical companies, and certain politicians) would have us believe that we are a "sue happy society" just ready to pounce on the medical profession at every turn and that doctors are under siege, right? Yet, this study, which highlights INDISPUTABLE medical negligence, pointed out that:

Only about 22 percent of the mistakes led to malpractice claims or lawsuits. The database is unusual in that it contains information on all incidents (not just those that resulted in a claim), and for that reason the rate of surgical mix-ups reported in the study is likely more accurate than those in previous studies...

The main reason for these surgical errors: lack of communication. You can add to that the fact that, in my humble opinion, the practice of medicine has become a volume business. And when that happens, confusion and/or complacency eventually sets in, which raises the risk of a preventable mistake.

What's the take away from this study? An strange trinity of medical mistakes that are repeating, serious, and often nothing is done about them by injured patients.
It sure knocks down some popular myths about medical malpractice in America (see "frivolous lawsuits"; "defensive medicine").

And oh, by the way, do you think that all these medical mistakes add to the cost of health care in America? Who do you think pays for all the re-operations and complications? Insurance companies and programs like Medicare and Medicaid...

"What Will Help My Case In An Ohio Accident Claim?"

2010-10-15T13:07:00.007-04:00

In no particular order, taking these steps will greatly increase the validity of your accident claim, and the liklihood that it will be brought to a successful resolution:

1. AVOID THE "REFERRAL MILLS."

Some personal injury firms have ongoing referral "relationships" with certain medical providers. These groups regularly refer patients and clients to each other. Insurance companies are becoming increasingly aware of these relationships, and this will often raise a red flag. Why? Because it raises the possibility that the treatment is being "padded" for purposes of the claim. Insurance companies will scrutinize these claims much more closely.

As an alternative, if you've been injured in an auto collision, a good place to start your initial treatment is your family doctor.

2. DON'T WAIT TOO LONG TO SEEK MEDICAL TREATMENT.

If you are still feeling the effects of your collision, get checked out by hospital or a provider of your choosing, and be sure to point out all the problems you're having. It's common that some injuries will not manifest themselves until a few days after the collision; in fact, the standard "discharge instructions" from any hospital emergency room will tell you exactly that. Insurance companies love to argue that there is no cause and effect between your crash and your injuries if there is a gap or delay in your treatment. The longer you wait, the more you play into that argument. Simply listen to what your body is telling you and make sure you follow up with a medical provider, but only if you feel it is necessary to do so.

3. KEEP ALL OF YOUR APPOINTMENTS

If you're scheduled for 18 physical therapy appointments and you miss 7 of them, this will be reflected in your medical records, and it will allow the insurance company to argue that you "aren't really hurt" if you missed that many appointments. If you miss an appointment and still feel the need for treatment, make sure you re-schedule it.

4. TRY TO MINIMIZE--NOT MAXIMIZE--YOUR LOSSES

If you've been ordered off work due to your injuries, try your best to get back to work as soon as you possibly can. It will do you no good to attempt to delay going back to work just to "build" your lost wage claim. When you can return to work should be a decision solely between your provider and you. If you try to go back to work as soon as you can and it's obvious that you're still having problems, you need to relay this to your provider as soon as possible so he or she can re-evaluate the situation.

Remember, insurance companies essentially view all injury claims the same way: that everyone is an exaggerator or malingerer until proven otherwise. Doing everything you can to get back to your normal lifestyle will "break" that stereotype and separate your claim from those who may be trying to exaggerate their losses. This leads to the final main point, which is...

5. BE HONEST

The worst thing you can do is exaggerate your injuries. Tell your providers all the problems you're having, but also let them know if there is any improvement. Don't tell them that you can't do an activity if it's something you can do but with difficulty. There is a difference between the two so make sure you're clear with your provider about the extent of what you can and can't do after an accident.

The best thing you can do is do your best to try to get your life back to normal as soon as possible. This will serve you well when it comes time for an adjuster--or a jury--to examine your injury claim. If you try your best and fail due to your injuries, it's much better than doing nothing or not trying. You will be seen as exercising "personal responsibility" for your actions. And, above all else, it's the right thing to do.

Is Evidence Of A Doctor's Past Drug/Alcohol Impairment Admissible In An Ohio Malpractice Lawsuit?

2010-10-13T16:02:00.007-04:00

Answer: it depends, but probably not. In a recent Ohio malpractice case, a dentist was sued for malpractice. Approximately 10 years before the lawsuit, the dentist was suspended indefinitely by The Ohio State Dental Board for "“inability to practice under accepted standards of the profession because of physical or mental disability, dependence on alcohol or other drugs, or excessive use of alcohol or other drugs.”

As part of the suspension, the dentist was required to successfully complete rehab, at which time her license would be reinstated, subject to a 5 year probationary period. Well after she had been completed her probation, she was sued for malpractice.

The issue: was her previous suspension admissible in a malpractice case when she was not impaired at the time of the alleged malpractice? The Ohio Court said no, because this evidence was too prejudicial against the dentist. This makes some sense; after all, if she had straightened her life out and was not impaired at the time of her alleged malpractice, there's a good argument for excluding that evidence. The Ohio Rules Of Evidence should give her or anyone else the benefit of the doubt in that situation.

However, the Court went further and ruled that evidence of her previous suspension was not allowed to be heard by the jury even when she testified that she had an excellent reputation in the community. This is wrong, in my opinion, because it allows her to tout her excellence in front of the jury, yet shield the truth--that, maybe, her "rep" was not so spotless after all.

The moral of the story? The playing field is often tilted in favor of the medical profession in Ohio medical malpractice cases due to rulings like this one.

"Zero Tolerance" Punishment In Schools Doesn't Apply To Those Who Molest School Children

2010-10-06T11:00:00.013-04:00

We've all heard of school districts' various "zero tolerance" policies that will get your child disciplined or suspended. For example, if your child gets in a fight that he didn't start and defends himself and fights back, he may still be suspended due to a school's "zero tolerance" for fighting. In fact, according to a recent story, a seven year old boy was suspended for a YEAR for bringing a toy gun to school. Most people would consider this over the top, but schools would no doubt claim that stringent zero tolerance policies are required for the protection of children.

SO MUCH FOR "ZERO TOLERANCE" WHEN IT COMES TO SCHOOLS' LIABILITY FOR MOLESTED SCHOOLKIDS

Fair enough. But this leads to an obvious related question: what about a "zero tolerance policy" for school personnel who molest schoolchildren? Welcome to Ohio, where school districts enjoy 100% legal immunity for sexual predators who molest schoolkids while masquarading as trusted school personnel. Under Ohio law, there is no liability for school districts if a student is molested by ANY school personnel no matter where it occurs--on the school premises, the school bus, a field trip--you name it. And even if the school district knows or suspects that an employee is abusing children and does not take action, or fails to perform a proper background check, again, no liability.

Now there's some real accountability. Give 7 year old Johnny a year's suspension for that plastic gun, and give school districts a free pass from being sued when they ignore red flags and discover that one of their own employees is doing unthinkable things to vulnerable children who can't protect themselves.

Too Many Lawsuits? With Pharma Giant Novartis, Apparently There's Not Enough...

2010-09-30T16:48:00.004-04:00

Die hard "tort reformers--" big business, The Chamber of Commerce, and the insurance industry--are famous for constantly pushing for lawsuit limits and "reforms" as being "good for the economy." Of course, what they continually ignore is that legitimate lawsuits often result in substantial benefit to the public.

Take the recent shenanigans of pharmaceutical giant, Novartis. For SEVEN YEARS, Novartis was paying doctors illegal kickbacks, disguised as "speaking fees," to persuade doctors to promote untested and FDA unapproved uses of Trilepetal, an anti-seizure medication. Turns out, doctors were prescribing Trilepetal for all kinds of maladies, like bipolar disorder and neuropathic pain, according to this article.

Bottom line: we as consumers were guinea pigs, ingesting drugs for untested conditions in a giant scheme to promote this drug. It took some whistleblowers to expose this fraud, and a massive lawsuit to make Novartis accountable. The settlement? A mere $422 million that will be reimbursed to the federal and state governments, like Ohio, who covered payments for Trilepetal prescriptions under Medicaid. Ohio's share? $12.5 million pumped back in the Medicaid coffers.

A classic example of institutional greed run amok, patient safety be damned, and a lawsuit that righted the ship and returned money to government programs.

I know it's a shock to The Chamber Of Commerce that companies like this are capable of wrongdoing in a race to improve stock shares and the bottom line, but it does happen (see, BP, tainted egg recall, etc). And when it does, the last thing we need is to water down one of the main weapons in the societal arsenal for ensuring that corporate America is held to the same principles of "personal responsibility" and "accountability" that polticians demand of us as individuals. That weapon is a lawsuit.

Insurance Company Recorded Statement Reveals "Tricks" To Obtain Your Social Security Number

2010-09-30T09:19:00.008-04:00

Recently I received a transcript of a client's recorded statement taken by an insurance company adjuster. The client gave the statement before I was hired to represent her.

"JUST A FEW BASIC QUESTIONS"(AND ALSO DIGGING FOR DIRT....)

There are three basic reasons an insurance company will try to obtain a recorded statement as soon as possible after an auto accident, or a grocery store "slip and fall": (1) obtain the injured person's basic version of what happened; (2) find out what injuries were sustained. The first two reasons are legitimate. Beware of reason no. 3 however: convince the injured person to give up basic background information so the insurance company can search mammoth databases for any "dirt" they can find, such as your credit history. Ask yourself this: what does your credit history have to do with your completely torn rotator cuff or fractured ankle after colliding with a drunk driver?

DIVULGING YOUR SOCIAL SECURITY NUMBER IS THE KEY...
One of the main tools for fishing around in your medical or financial history getting the injured person to divulge his or her social security number. Here's how a client was "nudged" into divulging her social security number. Note the subtlety and the order of the questioning (answers omitted):

Can you just give me your first name and spell your last name?
How old are you?
What is your date of birth?
Are you married?
And what is your husband's first name?
And, for identification purposes, what's your Social Security Number?

"Identification purposes?" This is code and a trick for: "We want your social security number so we can do some fishing."

There are LOTS of reasons why you should NEVER give your SS number to an insurance company in this situation. Privacy and identity theft issues aside, do you think that the drunk driver's insurance company will divulge their driver's social security number to you if you ask for it? Not even for "identification purposes?"

Dealing with insurance companies on your own after an accident or collision is often a one way street, and you are not driving or in control of the car...

How To Protect Yourself Against Dishonest Attorneys

2010-09-17T11:41:00.012-04:00

Recently, Ohio's Client Security Fund awarded approximately $267,000 to 33 Ohioans victimized last year by dishonest and unethical attorneys. It's no news flash to suggest that there are some bad apples out there that stain our profession.

AVOIDING THE SHYSTERS? DON'T RELY ON THE PHONE BOOK...

How do you as a legal consumer avoid these bad actors? In my opinion, folks in need of legal services are looking for two major things: competence and trustworthiness. So where are you going to find those attributes in an attorney? Through the phone book or (even worse) TV ads? Well, good luck with that. Just take a look at either, and you'll realize they all spew the same tired and totally meaningless platitudes like "experienced," "committed," "caring," "aggressive," "will fight for you," and the obligatory throw in: the "free consultation." Helpful? Ask this: what attorney in his or her right mind would take out an ad that said: "I'm inexperienced, lazy, not aggressive, and don't really care about you, but I want your business?"

Bottom line: attorney advertising is basically useless in your search for someone who will competently and ethically take care of your legal problem. The book, “Your Ohio Accident” explains how you should search for an attorney, what questions to ask, and what information you should be given before you hire one (available for FREE on our website by simply clicking on the book cover). Cookie cutter phone book ads and insulting TV spots should be the last place you look. I wonder how many of the attorneys who ripped off Ohio clients to the tune of almost $300,000 had one of those “committed” or “caring” phone book ads……

Hospitals Leaving Sponges (And Towels, Hemostats, Scissors, etc) In Patients-You Be The "Judge"

2010-09-15T16:14:00.006-04:00

This headline about a Florida hospital leaving a 12 x 12 sponge in a patient is not really news to me. After all, a few years ago I was involved with a lawsuit where an even larger foreign object was left in a patient. But I digress. This story is newsworthy for a few reasons.

First, it is not an isolated event. According to the article and other studies, this happens almost 2,000 times a year. Leaving objects in patients during surgery simply should not happen.

Second, the patient was a local judge. Whoops. I'm thinking that judges are probably one of the worst patient profiles for a colossal, preventable medical error like this. Although the judge settled with the hospital, he declined to be bottled up with a restrictive confidentiality agreement, which is standard in settlements like these. The reason hospitals usually demand confidentiality is clear: PR damage control. If the patient in this case was not a saavy judge who refused to be gagged with a confidentiality clause, nobody would have heard about this medical mistake.

Third, Florida, like Ohio, has passed limits or "caps" on what malpractice victims can recover, even when the negligence is clear and indefensible. So, no matter how much misery and life altering changes victims like this judge endure, the hospital's liability for its mistake is capped. The message? Give corporate America and hospitals a break even when they are caught dead to rights.

Finally, groups like The Chamber Of Commerce love to trot out and display occasional goofball lawsuits (like the nitwit who sued a dry cleaners for a bazillion dollars for ruining his pants) as the poster child for what is wrong with our legal system, and why we need lawsuit "limits" on recovery in all personal injury cases, including malpractice cases. But "sponge" cases like this one, not to mention "wrong site" surgeries, medication errors, the BP oil spill, The Upper Big Branch Mine explosion, and the 228 million egg recall, are continuing reminders that institutions are error prone, fallable, and often greedy at the expense of safety.

I'm pretty sure The Chamber will not be highlighting any of these notorious cases of inexcuseable negligence in its future press releases. They'd rather talk about the "pants" lawsuit and whatever other goofball lawsuits they can scrounge up.

ERISA Health Plan Can Legally Steal Every Penny Of Your Auto Injury Settlement...And What You Can Do About It

2010-09-09T13:16:00.008-04:00

Frank McCutcheon did all the right things. He had a job with U.S. Airways, and earned health insurance benefits with them. He also exercised personal responsibility in buying $100,000 worth of "Uninsured/Underinsured Motorists" coverage in the unlikely event that some irresponsible driver with low liability limits hit him.

Sure enough, the unlikely became reality, and Mr. McCutcheon was creamed by a driver with only $10,000 in liability coverage. His health plan paid his medical bills of about $66,000, and reminded him of that little subrogation clause in his plan that said: "Hey Frank, if you make any recovery or settlement, we're entitled to be reimbursed out of your settlement."

He collected the negligent driver's $10,000, and his underinsured motorists' benefits of $100,000. And then his health plan claimed reimbursement of the $66,000 it paid out of McCutcheon's $100,000 settlement.

Unfortunately for McCutcheon, his health plan was a a plan set up under The Employers' Retirement Income Security Act, known as "ERISA." Federal courts have interpreted this law to permit health plans to confiscate injured persons' injury settlements even if it leaves them without a penny. Ridiculously unfair, but unfortunately legal.

People like Mr. McCutcheon don't know about how their insurance becomes a trap door for their legal rights until they're on the receiving end of a bad collision. The only thing that would have saved McCutcheon here was if he had purchased $250,000 or even $500,000 of uninsured/underinsured motorists' (UM/UIM) coverage before his crash. For example, if his claim was worth $200,000, he would have at least had a decent recovery after his health plan took its $66,000 "cut." Purchasing the highest amounts of UM/UIM you can afford is the ONLY way you can level the playing field against the ERISA monster looking over your shoulder with its tentacles in YOUR settlement...

Morphine Overdose Medication Errors In Hospitals--An Alarming Trend

2010-09-07T13:28:00.009-04:00

It appears that hospitals are exposing countless patients to a dangerous risk of avoidable narcotic drug mishaps. A recent study from an independent Pennsylvania agency detected 1,694 medication errors over an 11 month period related to administration of morphine's synthetic equivalent, hydromorphone (also known as Dilaudid).

The problems with hospital mismanagement and medication errors associated with narcotics like morhpine and Dilaudid are numerous. First, Dilaudid is a more potent drug than morphine. As the study points out:

"...an order for an opioid-naïve patient for 2.5 mg to 5 mg of IV morphine would be equivalent to 0.3 mg to 0.67 mg of HYDROmorphone...The lack of knowledge about HYDROmorphone potency and the difference in potency between morphine and HYDROmorphone has frequently led to serious medication errors, especially when a patient is switched from morphine to HYDROmorphone."

In fact, the most frequent medication error associated with Dilaudid was "wrong dose/overdose," followed by giving it as the "wrong drug." How big is the scope of this problem?

In 2007, a review of 8,400 wrong drug medication error reports submitted to the Authority showed that the most commonly involved drug pair was morphine and HYDROmorphone.15 Present analysis of wrong drug medication errors mentioning HYDROmorphone reveals that 70% involve mix-ups with morphine

.

This study is alarming for a number of reasons. First, morphine and dilaudid are a frequent drugs of choice in ER's, surgery, and acute care trauma units. Second, and more importantly, both drugs carry a substantial risk of respiratory depression, meaning that they can depress breathing to dangerously low levels. If patients receiving too much of these narcotics are improperly monitored, depressed breathing/ respirations can lead to anoxia (an inadequate lack of oxygen in the arterial blood), which can lead to brain damage if not timely reversed with reversal drugs like Narcan.

So, if you have a loved one in the hospital, you might want to ask if he or she is being given morphine or dilaudid, how much is being given, what route it is being given (a shot or "bolus" versus an IV drip), and the frequency of the dosage. Your inquiry might just prompt a nurse to re-check or make sure that the correct drug is being given in the correct amount.

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

2010-08-31T13:48:00.005-04:00

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

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

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

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

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

Hospital Replacing Certain Employees....With ROBOTS

2010-08-27T14:15:00.005-04:00

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

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

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

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

Stupid Video Game Addiction Lawsuit Needs To Go Away

2010-08-21T14:36:00.004-04:00

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

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

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

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

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

2010-08-17T16:41:00.003-04:00

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

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

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

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

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

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

2010-08-16T12:53:00.003-04:00

“Will You Take My Picture?”

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

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

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

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

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

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

2010-08-09T07:00:00.004-04:00

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

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

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

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

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

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

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

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

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

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

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

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

2010-08-05T13:50:00.001-04:00

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

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

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

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

More Reasons Why Your Ohio Malpractice Case Might Be Lost

2010-08-05T13:39:00.003-04:00

THERE’S NO MALPRACTICE – JUST A BAD RESULT.

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

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

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

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

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

2010-08-02T21:07:00.005-04:00

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

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

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

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

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

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

2010-08-01T20:30:00.004-04:00

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

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

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

Reasons Why You May Lose Your Ohio Medical Malpractice Case

2010-07-29T16:55:00.004-04:00

There are many reasons why Ohio medical malpractice victims may lose their case, but here's a common one:

YOU WAITED TOO LONG

“Don’t I have two years to bring a malpractice claim?” Many people mistakenly believe they do. If you are injured in an automobile crash, you would have a two year statute of limitations in Ohio, which means that you have two years to either settle your claim or file a lawsuit to preserve your claim. Not so with many medical malpractice claims. There are special rules that apply to medical malpractice litigation.

In Ohio, you have a one year statute of limitations if you are injured as a result of medical negligence. This is one of the shortest statutes of limitations in the U.S.!

However, an important question in any Ohio medical malpractice claim is: When does your one year clock begin to tick? Generally speaking, your one year statute of limitations begins when: (a) you discover facts which lead you to believe that malpractice may have occurred; OR (b) when your physician-patient relationship with the offending physician or hospital terminates – whichever is later.

As you can see from this general rule, your Ohio one year statute of limitations may begin to run on any number of different dates. For this reason, it is imperative that you consult with a competent malpractice attorney sooner rather than later. Waiting until the last minute may make it extremely difficult to identify the proper triggering date for purposes of the one year statute of limitations, and may result in your case being rejected.

Your one year statute of limitations in Ohio may be extended by 180 days if a proper “180 day letter” is sent to the medical provider. Again, however, special rules apply to the 180 day letter law. For example, in order for the 180 day extension to be valid, the letter must contain the necessary language preserving the claim, and must be received before the original one year statute of limitations expires.

The short one year statute of limitations rule in Ohio places a premium upon quick action and an early investigation. Generally speaking, if you wait until there is only 60-90 days left on your statute of limitations, this may not leave your attorney with enough time to properly investigate your case. After all, it can take weeks or months to receive your medical records and have them reviewed.

ANOTHER SPECIAL RULE: OHIO WRONGFUL DEATH MEDICAL MALPRACTICE CASES HAVE A DIFFERENT STATUTE OF LIMITATIONS!

For medical malpractice cases resulting in death, Ohio does provide for a two year statute of limitations. However, the one year statute of limitations mentioned previously still applies to a loved one who was a victim of malpractice and sustained conscious pain and suffering before he or she died. Result: a medical malpractice claim resulting in death may be subject to BOTH a one year AND a two year statute of limitations. Sufficiently confused? You should be. Bottom line: You have a short window of opportunity to have your potential malpractice case investigated. These statute of limitations rules are complex, and are full of traps for the unwary or unsuspecting. You delay the investigation of your malpractice case at your peril.

$1.4 Million For Public Records Lawsuit Is Ironic...And Ridiculous

2010-07-23T14:11:00.002-04:00

A recent article in The Canton Repository about a local man who recently won a $1.4 million in a public records lawsuit shows how out of whack our legislative priorities are in Ohio.

Apparently the city of Bucyrus destroyed thousands of pages of public records requested by an attorney. The purpose of his request appeared to be laudable and legitimate. It also appears that the city violated the law, at least according to a local judge who heard the case. Ohio law provides for civil damages of $1,000 for every public record destroyed, presuambly as a strong deterrant against destroying records for public consumption.

But here's where things are way out of proportion and out of whack. Let's compare this law to laws The Ohio Legislature has passed that LIMIT a person's damages. If a hospital leaves a large foreign object inside you, their liability is limited to a sliding scale of $250,000-350,000 for any damage caused, even if it is permanent. If a drunk driver smashes into you and breaks your legs and your hips, you are limited to the same amount for your pain and disability. Welcome to "tort reform," a governmental intervention in your injury claim and a declaration that a one size fits all "cap" will apply on your claim.

So what's the message here: that preserving "public records" is more important than the human misery and trail of injuries caused by drunk drivers, medical errors, defective Chinese products, tainted foods, and other wrongdoers?

Liability for public records violations should not be endless when, at the same time, human suffering is cheapened and wrongdoers and their insurance companies are given "discounts." This recent verdict highlights the incongruity of our laws and a legislative lack of seeing a bigger picture of justice. And it also fuels the fire of "frivolous lawsuits" that will only make it harder for those with legitimate claims to obtain a fair recovery for their harms and losses.

Representing Injured Children: Try A New Communication Method (Well, New For Us Anyway But Not Them!!)

2010-06-28T15:06:00.003-04:00

Representing children who've been injured in a collision or some other calamity can be a challenge. If they're at that "awkward age" (pre-or early teen, for example), many kids are reluctant to talk much or go into detail about their injuries, and for good reason. You as their attorney represent a stranger, an intruder into their already disrupted lives. Many of these children are stoic about what they're going through, even with their parents.

Yet, at the same time, we need to build a rapport with them as someone they can trust and open up to, even if on a limited basis. They need to have a comfort level about a process where they eventually may need to give a deposition or testify at a hearing.

Consider this: texting is now the preferred method of communication amongst teens (anyone who has children this age will consider this revelation about as enlightening as the fact that the sun rises and sets every day...). An astonishing 75% of 12-17 year olds own cell phones (source: www.pewresearch.org).

Recently I had the pleasure of representing a pre-teen child seriously injured in a bad collision. With full parental permission, occasionally I would get a text from the child. The topics were not really "injury related," but as we texted more about everyday stuff (hobbies, favorite websites) this child opened up more and it helped me understand a little better what the child was going through. And I think it helped establish trust along the way and eased some fears when it came time for me to explain things the child needed to know.

Mom really appreciated me taking the time to "talk" to her child in this manner. It is not a silver bullet and it has its limitations, but it illustrates that if you're going to effectively speak to any clients, even children, you need to speak their language. so try it n c., K? u might be suprised, LOL.

Ohio Wills And Wealth Blog

2010-06-28T11:14:00.002-04:00

If you're interested in a good blog that discusses the ins and outs of Ohio wills, trust, wealth protection, and estate planning you should check out Matt Gibson's Wills and Wealth blog.

It is chock full of good practical information, and I even found a section devoted to the late, legendary UCLA basketball coach John Wooden. A boyhood idol of mine, his quotes on life are priceless, and when you read them, you can easily see why he was such a great coach and human being. Any legal blog that can incorporate Coach Wooden's philosophies gets a thumbs up in my book!

Keep up the good work, Matt!

Ohio Law Values Property Rights Over Human Rights (And Here's Proof)

2010-06-21T13:34:00.004-04:00

This is how out of touch our Ohio Legislature has become. Let's say you as a concerned citizen go to a public meeting and question the safety of Ohio food products. For example, you question whether a huge corporate egg farm is re-packaging old eggs, or claim that an agribusiness is spraying harmful chemicals on apples or broccoli. Under Ohio law, you can be sued for product "disparagement." Ohio is one of 13 states which passed "Veggie libel" laws back in the mid-1990's. According to FirstAmendmentCenter.org, "these statutes allow farmers and agribusiness companies to sue individuals or groups who make allegedly false or disparaging comments about certain agricultural products." Agribusiness pushed for these laws after a famous "Oprah" episode where the safety of Texas beef was questioned, and Oprah was sued for it (the case against her was eventually dismissed but that lawsuit got the train of idiocy known as Veggie Libel laws moving in various state legislatures).

If you knowingly disparage the safety of a vegetable or a chicken, for example, you are liable for "compensatory and punitive damages, reasonable attorney's fees, and costs of the action." And if you intentionally disparage those same vegetables or chickens, the agribusiness is entltled to TRIPLE the amount of compensatory damages against you!!!

The purpose of the law is simple: to stifle consumer groups, or a concerned mother, from questioning food or product safety. So much for your First Amendment Right Of Free Speech (hey all you "constitutionalists" out there, where do you sit on this issue???).

Now let's turn the tables here and see how Ohio law treats individuals harmed by these products. Let's assume that you ate a re-packaged egg laced with bacteria or got e-coli from a bad chicken or pig or a bag of lettuce, spent 6 months in the hospital, and almost died. Under Ohio law, the manufacturer's liability is limited to a sliding scale of $250,000 to $350,000. And by the way, you have to pay your own attorney--the manufacturer does not have to pay your attorneys fees even if it is proven to be negligent. No "tripling" of your compensatory damages (your medical bills, lost wages, and pain and suffering) either. These caps were passed in 2005 at the behest of insurance companies, manufacturers, and The Chamber of Commerce. Our Ohio Supreme Court upheld the constitutionality of these caps in 2009.

This is currently the state of the law in Ohio. Disparaged fruits and vegetables have more legal protection than damaged human beings. How (wacked) (Orwellian) is that? I couldn't make up this nonsense if I tried. Nobody would believe it. Truth is stranger than fiction. As I've said before, welcome to Ohio Inc.

Friday Big Picture- The BP Oil Disaster: Liability Caps Don't Look So Good Now...

2010-06-15T15:46:00.007-04:00

Big Oil and other huge corporations have by and large gotten their wish over the last few years when it comes to our legal system. Their billions in lobbying efforts have paid off, most notably in the form of liability "caps" or limits on corporations' liability when they negligently harm the environment. In Ohio these caps extend to victims of medical mistakes and even folks injured by drunk drivers, --you name it. The list of legal protections and limits has become endless.

By now, everyone who's not comatose now knows that, under federal law, BP's legal liability is limited to $75 million for environmental disasters. Here's the illogic expressed by one oil (friendly)(marinated) Senator who has vowed to fight any legislation increasing the cap to $10 billion:

Objecting for the Republicans, Sen. Jim Inhofe (Okla.) said that putting oil companies on the line for unlimited liability would push all but the largest companies out of the offshore drilling business — the same argument he made last week in rejecting the $10 billion cap. In fact, Inhofe said, removing the liability cap could push even the giants of the industry — BP, Shell, Chevron, Exxon-Mobil and ConocoPhillips — out of contention for contracts, leaving only the big nationalized firms (like those in China and Venezuela) to do the drilling.

“If you take the 10 billion [dollar cap] off and make it unlimited,” Inhofe said Tuesday on the Senate floor, “that could very well shut out even the five [oil giants], and leave nothing but national oil companies in a position to be doing [offshore drilling].”

"Unlimited liability." There it is--the main argument for artificial limits placed on corporate malfeasance. Of course, it's a slap in the face to the same notions of "responsibility" and "accountability" these same politicians are famous for talking about. Apparently, you the INDIVIDUAL must exercise personal responsibility in your life (and that's a good thing). But when it comes to corporate accountability for cutting corners and risking workers' lives, an entire ecosystem, and thousands who rely on clean waters for commercial fishing and tourism, we can't have "unlimited liabiity," for corporations, can we?

Therein lies the problems with "caps," whether it's a cap on BP's liability or a cap on your inability to walk or feed yourself due to a preventable medical mistake or a seat belt failure. Caps water down and crush the well accepted societal axiom that "if you break it, you buy it."

All these legal limits sound good on paper until the you know what hits the fan. And now, in the face of an uncontrolled disaster, they don't look so appealing after all.

Hey BP: since you can't "cap" this well, you shouldn't have a "cap" on your liability either. A message that seems to be lost on those who favor these artificial limits on certain forms of arrogance, stupidity, and recklessness.

Facebook Update: Insurance Companies And Employers Are Trying To Gain Access To Your FB Info...(Hello Big Brother)

2010-06-13T10:55:00.002-04:00

As Facebook continues to gain in popularity, it is creating interesting legal permutations. Recently a colleague reported that after he filed an Ohio personal lawsuit for his client (who was injured in a collision), the attorney for the at fault driver's insurance company requested the following information:

"Any and all entries and replies made by (Plaintiff) on his Facebook account including any photos, postings, wall entries including the information page or any video attached to Facebook, since the accident that is the subject of the complaint".

Whether insurance companies are legally entitled to this information remains to be seen. In a related matter, five nurses are subject to being fired for discussing certain patients' care on Facebook, even though no names or other patient identifying information was utilized.

This is a classic example of technology and social trends being ahead of the issue of how to deal with either legally, and in the marketplace/employment setting. One thing's for certain: you can expect employers and the courts to be all over the place on this issue, so you might want to think about what you're putting out there.
Food for thought anyway....

The Friday Big Picture....

2010-05-27T14:51:00.006-04:00

Somehow I was placed on the U.S. Chamber Of Commerce's e-mail list. As some people know, the Chamber hates "trial lawyers" and has spent billions lobbying against any lawsuits filed by injured or ripped off individuals against businesses and corporations. In fact, their mantra on their website is "Jobs, Not Lawsuits." Recently they sent me a link to a poll where readers can vote on the "most ridiculous lawsuits." May's entry was: "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury" (read on to find out more about this doozy of a lawsuit...)

Who is in favor of "frivolous lawsuits?" Nobody, including me. But why does the Chamber lobby so heavily for limits or restrictions on legitimate lawsuits? For example, they are in favor of "caps" or limits on what you can recover if you're sentenced to a wheelchair or a family member is killed due to corporate wrongdoing, preventable medical errors, and a whole host of other shenanigans. Their position on lawsuits can be boiled down to two truths: Your lawsuit as an individual against any corporation? Bad, and we need limits on your recovery. Any corporation suing you or another business for whatever reason? No limits.

Here's the flaw with the Chamber's monolithic stance on lawsuits: every so often, current events shine a spotlight on the hypocrisy of an organization like the Chamber's talking or lobbying points.So let's review what's happened within the last few weeks and see it squares with the Chamber's position:

1. Upper Big Branch mine explosion Twenty nine miners killed or missing and 57 infractions just 1 month before the explosion, including one for failing to develop an adequate ventilation plan;

2. BP Oil Well Explosion--11 workers killed, and thousands of jobs lost in marine and fishing industries too numerous to mention, including the destruction of the Gulf Coast ecosystem for years to come;

3. A New York Hospital that failed to read over 4,000 echocardiograms (heart disease tests) ordered by doctors because nobody bothered to flag the tests for review;

4. A Georgia hospital failed to read over 900 mammograms due to an employee's "failure" to make sure they were read;

5. A Maryland doctor is under federal investigation for allegdly performing over 300 unnecessary cardiac stent procedures.

Goofball lawsuit? Meet mass, horrific, preventable tragedies, inepteitude, and greed. Funny, I searched all over The Chamber's website but could find no mention of any of these recent jaw dropping examples of institutional negligence/recklessness, much less any support for limiting the liability of BP, for example, for its corporate wrongdoing.

Nah--it's too fun and too easy to rail on "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury ." By the way, you can vote for this as the "most ridiculous lawsuit" of the month.

One final note. The "handyman" lawsuit? It was filed in GREAT BRITAIN! Do we need any more proof of how disengenuous the StarChamber is when it comes to this issue?

Should You Use Your Own Auto Insurance Company To Fix Or Total Your Car After An Accident?

2010-05-24T20:43:00.006-04:00

Short answer: YES! Here are common misconceptions that I hear all too often from my clients shortly after an accident:

1. "My agent told me to go through the responsible party's insurance company first."

WRONG! If you have collison insurance with your own company, your insurance contract absolutely obligates your company to timely repair or total your car. Your policy, and Ohio law, does NOT obligate you to run the gauntlet of the at fault party's insurance company and their delay and low ball offers. All too often, crash victims in need of an estimate, a rental car, or an offer on their totalled car wait for days for the at fault party's insurance company to take care of the damage/loss. You can short circuit the dalay by insisting that your company immediately take care of your car.

2. "My agent said that my rates might go up if my company pays for my car damages."

WRONG again! Buried in your insurance policy is a "subrogation" clause. This means that if your insurance company pays a penny for your car damages, it will "subrogate" or obtain full reimbursement from the at fault party's insurance company.

3. "But I have a $1,000 deductible. My agent told me that they will have to subtract my deductible from any offer my insurance company makes on my car."

CORRECT....but only half true. The at fault party's insurance company will reimburse you for your $1,000 deductible shortly after the collision, and most body shops will work with you and simply wait for you to turn over the $1,000 when you receive it.

4. "I have rental coverage through my own company but my agent told me to first go through the at fault party's for a rental."

WRONG...and totally improper if you have purchased rental coverage with your insurance company. You pay a separate premuim for rental coverage, and the whole point of having it is to be entitled to immediate access to a rental car shortly after a collison, when you need it the most. Many of my clients report that the at fault party's company is too slow to offer a rental car. Worse yet, many companies tell accident victims: "go pay for a rental and we'll reimburse you later for reasonable rental charges," whatever that means. And many crash victims don't have the cash to plunk down on a rental car.

When you go through your insurance company, almost all of them will pay the rental agency directly.

These roadblocks are nothing more than your company's attempt to not have to get involved/pay anything by throwing everything back on the at fault party's insurance company. In a perfect world, the at fault party's company will step in and fairly take care of everything with no delay. All too often, however, this is not the case.

So you need to do two things to protect yourself. Get your insurance company involved immediately in your car's repair or replacement. Don't take no for an answer. And if you start to hear some or all of these excuses from your own company, it's time to drop your company and find a new one--and an agent who will work WITH you, and not against you.

An Insurance Secret That Personal Injury And Insurance Attorneys Know...

2010-05-18T21:40:00.005-04:00

Personal injury attorneys who represent auto accident victims routinely square off against attorneys hired by insurance companies to defend the at fault motorist in a lawsuit. Here's a secret that both we personal injury and insurance company attorneys know: we all carry high amounts of Uninsured/Underinsured Motorists' coverage. Ask any one of these attorneys what kind of coverage they carry, and the typical amount will be around $500,000--minimum.

There is a simple reason for this: all of us see case after case where (1) accidents victims were seriously injured, and the at fault motorists had (2) no liability insurance, or (3) minimum or low amounts of liability coverage, meaning that there was not enough coverage to compensate injured victims for all their losses. And all too often, auto accident victims did not have enough uninsured/underinsured motorist (known as UM/UIM) coverage with their own insurance comapny to protect them from irresponsible drivers with little to no liability insurance. If you have high levels of UM/UIM coverage, you could make a claim against your own insurance policy for the difference bewteen what your claim is worth, and the at fault driver's insurance.

EXAMPLE: You are seriously injured in a crash and your claim is worth $300,000. The at fault driver had Ohio state minimum limits of $12,500. If you had $500,000 in UM?/UIM coverage, you could collect $12,500 from the at fault party's insurance and $287,500 from your own insurance company under your UM/UIM coverage.

Now you know why we carry high levels of of UM/UIM coverage.

Here's another secret: we know that it is cheap to purchase high amounts of this coverage. Typically you can increase your UM/UIM coverage from $100,000 to $500,000 for around $150.00 per year ballpark, and maybe even less than that.

In my book, Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy, I explain the importance of this coverage, how you can intelligently purchase it, and all the RIGHT questions to ask your agent or companny.

It's free to all Ohioans. Just click on the book cover and fill out the contact information.

Trucking Company Tries To Avoid Responsibility For Loading Dock Injury

2010-05-17T16:48:00.007-04:00

OHIO TRUCKING ACCIDENT--A TRUE STORY

Facts: an out of state truck driver fails to set the brakes at a loading dock, injuring a forklift driver. A lawsuit is filed, and it is discovered that the truck driver took pictures of the resting position of the truck and forklift and turned the photos over to his employer’s company safety director. The safety director’s deposition is taken, and he denies the existence of any photographs, raising the issue of whether important evidence was destroyed.

ACCIDENT KITS
Every truck driver is given an “Accident Kit” by his company. Usually included in this kit is a disposable camera, some instructions for the driver (including instructions to “Never admit fault to anybody”), and, in this particular case, an “Exoneration Card.” This card basically said that the truck driver was relieved of any responsibility for the crash! Worse yet, the truck drivers were instructed to try to get accident victims to sign these cards!

This made me wonder: Shouldn’t the “Accident Kit” have an “Acceptance of Responsibility” card in the event the truck driver was clearly at fault? So I asked the Safety Director about this at his deposition:

Q. Does the accident packet have a card that says, "Acceptance Of Responsibility," if the driver truly committed a driving mistake, for instance, if he rear-ended somebody?
A. No.
Q. All right. I didn't think so. Thought I'd ask anyway, though.
A. Well, he's told not to say nothing, so he wouldn't answer it anyhow.
Q. Even if he's at fault he's told not to say anything?
A. Absolutely.
Q. Why?
A. If they want a third party narrative from an officer, then he tells him what the sequence of events. We tell the drivers it's left to somebody else to determine fault, usually in a court of law.
Q. Well, what if a driver's clearly at fault, clearly rear ended somebody, I wasn't paying attention?
A. What's clearly at fault?
Q. You don't know what that is?
A. No. If you're driving through an intersection and a light is green, and somebody hits you, who's at fault, the guy that ran the red light or the guy that ran the green light?
Q. Let me give you a hypothetical.
A. Okay.
Q. Truck driver's trying to make a cell phone call, not paying attention and he rear ends somebody clearly at a stop sign.
(Trucking Company Attorney) I'm going to object to the hypothetical.
Q. Do you instruct your drivers under all circumstances, "Don't admit you're at fault even in a situation like that, just don't do it?"
A. I've got nothing further to say about it.
Q. Yes or no?
A. I've got no opinion.

See how it works after a crash? Never admit fault, but always try to get the injured person to admit responsibility. So much for “personal responsibility” or doing the right thing; apparently that only applies to the injured person, and not to corporations or their insurance companies...

After we filed a motion to include a count for punitive damages due to possible destruction of evidence, the trucking company admitted liability at a court ordered mediation, and the case settled for a confidential sum.

Robotic Surgery Safety--Are Patients Part Of A "Learning Curve?"

2010-05-11T13:14:00.008-04:00

Robotic or robot assisted surgery appears to be the latest surgical craze. Hospitals are purchasing these robots (known as the "de Vinci") to assist in heart, prostate, and gynecological surgeries, just to name a few. They are also spending lots of money marketing robotic surgery in billboards, TV, newspaper, and radio ads as a new breakthrough in "minimally invasive" surgery. However, a recent Wall Street Journal (WSJ) article has questioned whether certain hospitals and surgeons are qualified to offer robotic surgery as a safe alternative to traditional surgery.

The reason: there is a steep learning curve for the operator/surgeon to become proficient or experienced with the robot. Some surgeons quoted in the article indicated that it takes anywhere from 200-700 surgeries to become experienced enough to avoid certain surgical complications due to tecnical or operator error. And some smaller hospitals don't do nearly enough surgeries per year to allow surgeons to gain the necessary experience.

Here's the problem, according to the WSJ: many smaller hospitals have invested an initial $1.4 million in the machine, and may need to have 500 surgeries per year to make money on their investment. This raises an obvious question: is robotic surgery being "pushed" on patients in order to justify the use (and cost) of the machine?

Another potential problem is that there are no real standards as to when a surgeon is deemed qualified to safely operate the robot. Surgeons interested in robotic surgery are typically sent to a two day seminar where they operate on pigs and cadavers. Hospitals are free to set their own additional standards regarding operating under supervision (known as "proctoring"), but they are often minimal.

The article is worth a read because it highlights numerous misadventures/injuries with robotic surgeries, and hints that surgeon inexperience was the primary cause of patient injury. This issue sounds eerily similar to what happened when laparoscopic gallbladder (known as laparoscopic cholycystectomy or "lap chole") surgery was introduced in the late 1980's as the newest revolutionary breakthrough. Similarly, surgeons were sent to two or three day seminars and practiced on pig bladders, were supervised for a limited number of surgeries, and were deemed "proficient" in laparoscopic surgery.

The results were initiallly disasterous. The incidence of common bile duct injuries (a devastating injury to the main bile duct that is NOT supposed to be cut during gall bladder removal) increased dramatically versus the old fashioned "open" method of gall bladder removal. Numerous medical journals reporting these findings noted that the increase in common bile duct injuries was due to a "learning curve" caused by inexperienced surgeons as hospitals rushed to promote a new and better method of gall bladder removal. From personal experience, I investigated and litigated numerous Ohio laparscopic gall bladder malpractice cases where the patient's common bile duct was cut/severed, including a jury trial where the jury concluded that malpractice occurred and that the injury was preventable.

With the similar history of laparoscopic surgery in mind, patients inquiring about robotic surgery should ask the following questions of their hospital and surgeons:

1. How long has robotic surgery been in place at your hospital?
2. How many operations have been performed robotically at your hospital since this technology was introduced?
3. What are the surgeon's qualifications for performing robotic surgery?
4. What do your qualifications consist of?
5. How many robotic surgeries did you assist in?
6. How many have you performed on your own?
7. What specific complications have you encountered?
8. What is complication rate for your proposed surgery over and above the complication rate for traditional surgery?
9. Has the hospital published or kept track of the complication rate for robotic surgery and are those results available for review?
10. What are the latest leading studies, medical journal articles, papers, or abstracts regarding the safety or complication rates for your proposed surgery (and ask for a copy of the article or study)

If you don't receive any real answers to these basic questions, consider taking a pass on the de Vinci. Medical technology can be a wonderful thing. Indeed, laparoscopic bile duct injuries in lap gall bladder surgery have now essentially decreased very close to the level of injuries seen with traditional gall bladder surgery. But the lack of real testing and data with any new technology or surgery can put thousands of patients at risk for years until more is known about complication rates. Bottom line: you as a patient should not be an unknowing or unwilling guinea pig in any hospital's or surgeon's "learning curve."

I Have An Injury Claim And I'm Getting Divorced--How Much Is My Spouse Entitled To?

2010-05-03T10:00:00.011-04:00

Occasionally we have guest bloggers write on topics of interest that cross over into Ohio personal injury issues. Our guest blogger is Robert L. Mues, an outstanding Dayton, Ohio family law attorney. I found his interesting and informative blog and website while searching the Net for...interesting and informative blogs and websites! His blog is a must read for folks dealing with the weighty issues of divorce, custody, and other related legal matters. One issue that intersects our legal worlds is how Ohio personal injury claims or proceeds are divided in domestic relations court. Take it away, Robert...

How Injury Settlements are Treated by Ohio Divorce Courts

Factual Scenario:

A year ago you were involved in a rear-end car accident which was not your fault. You were the only occupant in the car. You were taken to the hospital from the accident scene and given some pain medication and told to contact your family doctor. The next day, you couldn’t believe your back and neck pain! The pain continued and your wife correctly suggested that you hire an attorney to represent both of you in dealing with the insurance company. As a result of the accident, you missed a week of work at ABC Machine Shop, where you work as a tool maker being paid $17 per hour. Fortunately, all your medical expenses were covered under your health insurance plan except for $100 in co-pays.

In addition, for about a month or so you were not able to cut the lawn, take out the trash and do other chores you usually did. Your wife had to pick up the slack. Your interest in being intimate with your wife also suffered. All of this started causing arguments between the two of you. You generally just went to work and would come home and go to bed early. Your wife started staying out late after work and “going out with the girls”. After much discussion and investigation, you learned she had become involved with a male friend. The two of you decided 7 months after the accident to separate and, unfortunately, to end your marriage and get a divorce.
You both hire separate divorce lawyers. In the midst of the divorce, your lawyer on your accident case calls you to tell you that after long and hard negotiations there is a “fair” offer on the table for you and your wife. That is great news you think, since you could use the money to help get back on your feet.

But your accident lawyer tells you that your wife will need to sign both the insurance check and release document. Now you realize that you might have a problem. So you decide to call your divorce attorney and tell her the situation and ask if keeping all the money would be a problem. She says that this is a new issue and that it will “need to be worked out” with your wife’s attorney. “Worked out?” What is there to work out, you think, since it was you that was injured and not your wife? Here is what you are likely to learn from your divorce lawyer about how personal injury claims are typically treated in Ohio Courts.

IS A PERSONAL INJURY SETTLEMENT SEPARATE OR MARITAL PROPERTY?

The general rule is that if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate, the settlement is separate property and should be fully awarded to the injured person. Realizing this to be the law, your divorce attorneys will try to get you all or as much of the proceeds as possible.

If the two lawyers are not able to negotiate an agreement, the divorce court would need to determine what part of the proceeds are “martial” and subject to equitable division and what portion is “separate property” and not divided. Separate property is defined to include “compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.” Thus, in order for the settlement to be considered separate property, a person must trace those funds, and those funds must represent something other than a loss of marital earnings or compensation for expenses paid from marital assets. A personal injury settlement is “marital property” divisible upon divorce, only to the extent that it reimburses injured spouse for lost earnings and medical expenses that have adverse impact on marital estate. In characterizing settlement proceeds, it is proper to consider whether injured spouse's medical expenses had, in fact, depleted the marital estate, or whether employer or insurer had picked up such expenses. It is also common that a portion of the settlement proceeds are intended to compensate the injured person’s spouse for the damage or impact to their marital relationship, which is referred to as a “loss of consortium” claim. Divorce Courts typically view that claim as the separate property of the spouse of the accident victim.

Ohio Courts have held that a personal injury settlement is marital property in the following situations: commingling assets by accepting entire settlement in one check made payable to both parties; compensation for lost wages; and medical bills that have an impact on the marital estate. In addition, when there is a lower settlement amount than what would have otherwise occurred due to low policy limits or a lack of funds from the responsible party, there is no abuse of discretion for the trial court to allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only.

Many personal injury attorneys are successful in requesting the insurance adjustor to provide a letter breaking down the proceeds by category. That can be very helpful for the divorce lawyer. But if the adjuster will not provide that breakdown, then the Court will need to hear testimony about the injuries and review the demand package sent to the adjustor and apply the law.

CONCLUSION

So, what is my best estimate how a court might allocate the net proceeds in the above scenario if there is no letter from the insurance company setting forth their breakdown? Well, it would seem that the lost wage portion of approximately $680 would likely to be considered “marital” and she would get half of that amount. The medical bills did not impact the parties significantly. Technically, she should get perhaps $50 to reimburse her 1/2 of the co-pays. In my experience, loss of consortium claims typically make up only a small portion of the gross settlement unless the injuries are very significant. But this is a very “grey” area subject to the Court’s equitable discretion. Any amount allocated to her loss of consortium claim would be wife’s separate property. So, in my scenario, the lion’s share of the settlement proceeds will go to you to compensate you for your pain, suffering, and all that you had gone through as a result of the collision.

Robert L Mues is the managing partner of the Dayton law firm of Holzfaster, Cecil, McKnight & Mues. He has focused much his practice over the past 31 years in the family law arena handling divorce, custody and juvenile law matters throughout Southwest Ohio and in many Ohio Courts, including the Ohio Supreme Court. Mr. Mues has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. He has been very active in supporting child welfare issues throughout his career as well as serving on various charitable non-profit boards. He loves to write and is very proud to be the publisher of the popular and informative Ohio Family Law Blog. To learn more about Mr. Mues and to be linked to the Ohio Family Law Blog, click here.
Link to the blog:
http://www.hcmmlaw.com/blog/

Insurance Companies Using Facebook and MySpace To Spy On You

2010-04-28T15:12:00.003-04:00

You had to figure this was coming...Insurance adjusters are getting access to social media sites and using posted information against claimants in a wide variety of situations. Case in point: a colleague recently reported that an insurance adjuster recently told him that his teenage client ( injured in an auto accident) had misstated her age, was smoking, and engaging in other "questionable activity."

What's the legal relevance of these activities to her injury claim? Perhaps it showed her engaging in all sorts of activities that she claimed she was incapable of doing because of the crash--a potential problem.

But what if her "activities" had no bearing on her injuries or her claim? If a lawsuit were filed, perhaps this evidence would be ruled irrelevant and therefore inadmissible. But here's the problem: probably over 90% of all auto or other injury claims are settled without a lawsuit being filed. So, insurance companies are free to try to use this "we've got some dirt on you" strategy as leverage in settlement negotiations. Sneaky? You bet. But there's a reason why insurance companies continue to make money, recession or no recession.

The ripple effects of insurers and employers trolling social media remain to be seen. I suspect that life and health insurance companies are using this tactic as well. Just think about all the applications for insurance you fill out, and that little clause at the end where you verify that the information you've given is true and correct. Now measure all that against information that you may post to your favorite sites. Something to think about.

Probably the best solution is to assume your Mom is reading your sites and "motherproof" them. Is "motherproofing" a word? Maybe I'll copyright it.

I Owe $10,000 On My Totaled Car And The Insurance Company Says It's Only Worth $7,000--The Importance Of Gap Coverage

2010-04-22T12:26:00.002-04:00

"Why Should I Still Owe the $3,000 On a Totaled Car
For a Collision That Was Not My Fault?"

This is a very common question, and is difficult to explain to upset clients. Under Ohio law, if your car is totaled, you are entitled to the actual cash value of the car.The value of your car MAY OR MAY NOT BE equal to what you owe on it!!! For example, if you take out a 5 year loan on a $10,000 car, and your payments total $13,000 over that time, you are $3,000 “in the hole” when you drive it off the lot. If you get in a collision and total the car before you get home, all any insurance company owes you is the value of the vehicle – and not what you owe on it.

GAP INSURANCE IS THE ANSWER:
You run a big risk of still having to pay for years on a totaled car if you put no money down on it and finance it over a lot of years. One way of protecting yourself is to purchase “Gap Insurance.” It covers you for the difference between what you owe and your actual cash value. In our example above, the gap insurance would have paid off the $3,000 you owed on your loan. Some car dealers sell it, or your auto agent might be able to add it to your policy. Just make sure your gap insurance covers accidents.

Company Launches Special Motorcycle To Help Disabled Riders Get Back Their Freedom/Independence

2010-04-19T20:41:00.008-04:00

One of the biggest challenges accident victims face is the loss of their freedom and independence. We all take for granted the simple things in life, particularly the hobbies we enjoy, whether it's swinging a golf club, casting a rod in persuit of our favorite fish, or even bending over to plant flowers or vegetables in our gardens.

It's common for motorcycle accident victims to sustain even more devastating and challenging injuries after a motorcycle accident, for obvious reasons. Many never regain the ability to ride and enjoy the freedom and independence of the open road--an American tradition.

One company, Mobility Conquest, solved this problem with the launch of a really cool product: a motorcycle specially built for disabled or wheelchair dependent persons. According to Mark Allen Roberts, Mobility Conquest president: "We are connecting people who are passionate about riding motorcycles with a product that gets them on the road, feeling the wind in their face again...I have a great job as everyone who rolls their chair up the ramp of our motorcycle you can drive from a wheelchair has this huge grin, its as if a part of them that was removed, has been returned."

How cool is that? Amped up with plenty of horsepower, this cycle can even accomodate a passenger. Congratulations to this company for empowering hopefully thousands of folks who never thought they'd get back the feeling of traveling down a windy country road on a lazy Sunday afternoon.

Hospital Acquired Infections: Still A Nagging Problem For Hospitals

2010-04-15T15:47:00.006-04:00

According to a recent New York Times Article, "The nagging and largely solvable problem of hospital-acquired infections remains as resistant to cure as the germs that contribute to an estimated 100,000 deaths a year..."

These findings were based on The 2009 National Healthcare Quality Report issued by the U.S. Department of Health and Human Services. Essentially, there's been no real progress made in reducing certain hospital acquired infections, and many of them, such as post-operative sepsis, are increasing (the study noted an 8% increase).

One of the key findings of the study was that wound infection following surgery is common in hospital acquired infections, and that "hospitals can reduce the risk of surgical site infection by making sure patients get the right antibiotics at the right time on the day of their surgery."

Having surgery at a hospital soon? Ask your surgeon about the specifics of pre-operative antibiotics before surgery, i.e whether you will get them and when you will get them.

Some other numbers that caught my eye: the cost attributed to medical errors was between 17 and 29 BILLION dollars.

You can read more about this topic at The Safe Patient Project.

Bubbles...And A Profile In Courage

2010-04-13T06:25:00.005-04:00

Last night my wife and I had the privilege of listening to a presentation by Canton resident Barbara Turkeltaub, a Holocaust survivor and a friend of mine.

Imagine being a six year old at a playground retreiving a soccer ball in a ditch. Suddenly it's very loud and you hear strange noises; you emerge. The children are dead. Nazis have invaded Poland and have bombed your city. You are rounded up with your sisters and parents into the Vilma ghettos. Arrangements are eventually made for the family to split up and escape. You and your three year old sister are ushered into a wagon in the middle of the night, buried by blankets and hay, to a farm of strangers.

You are barely welcome there, and you overhear that you and your sister are going to be turned in to the Gestapo the next day for some kind of reward. You don't know what the "Gestapo" is, but your fragile mind senses that something is wrong. You decide to escape in the middle of the night, but your sister is restless. You break into the pantry to get some bread to keep her quiet. You spot a what appears to be a jar of honey; this will work. The sweetness of the honey on the bread will distract her during the escape.

You sneak out and give her the bread to keep her quiet. Hand in hand, in the darkness of night, you notice bubbles coming out of her mouth. The jar of honey? Turns out is was soap. No matter; she is content to eat the bread lathered in soap, and you make your escape, eventually to a convent to be raised by nuns and priests until reunited with your mother a few years after the war ends.

The crowded room erupts in laughter along with Barbara. A moment of levity in an otherwise unfathomable story. A story told at a university peppered with college students. And a lesson in grace, forgiveness, and the strength of the human spirit that cannot be found in any textbook or course syllabus.

There are also lessons here for people devastated by injury and other personal tragedies like the loss of a loved one. Perserverence. Never giving up. Survival. Forgiveness. Finding kernels of goodness when surrounded by evil or dire circumstances.

Thank you, Barbara, for sharing.

West Virginia Mine Disaster--No Liability If This Happened In Ohio

2010-04-09T09:15:00.011-04:00

Every so often, a horrible tragedy serves as a reminder of how "tort reform" allows companies to escape accountability. The recent West Virginia mining explosion tragically took the lives of twenty mine miners. Predictably, politicians are calling for investigations of mining safety, and Massey Energy's safety record is under scrutiny--for good reason, according to The Charleston Gazette:

Last year, federal regulators studied the safety record of Massey Energy's Upper Big Branch Mine to see if the operation should be put on a "pattern of violations" status, a move that would shut down mining sections each time inspectors found serious violations.

U.S. Mine Safety and Health Administration officials decided the company hadn't met the agency's complicated criteria for deserving such a stepped-up enforcement action.

Upper Big Branch met nine of MSHA's 10 criteria for a pattern of violations, said agency spokesman Carl Fillichio. It had at least 20 serious citations, it had two orders citing "imminent harm" to miner safety, and had violation rates worse than the national average.

But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.

Upper Big Branch didn't have a single such order. It had 16 of them.

But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.

What if a similar mine explosion happened in Ohio? Assuming that the mine owner had repeated safety violations and even made no effort to correct them, the owners would not be liable for the miners' wrongful deaths, courtesy of a recent Ohio Supreme Court Case I wrote about last week. Under current Ohio law, an employer is not liable for injuries or deaths to injured workers unless the employer specifically intended to injure or kill them--the same standard of proof required to prove a murder. This law was passed by The Ohio Legislature in 2005 as part of "tort reform" legislation. The "theory" behind the law was that, reduced liability for businesses would yield a "predictable legal climate" in Ohio that would be would be "attractable" to businesses.

What kind of policy is promoted by a legal "race to the bottom" in the form of laws that allow employers to escape legal accountability for blatently ignoring safety rules and regulations? The sad reality is that nobody will realize how regressive or idiotic this law is until a similar tragedy happens here in Ohio. And if it does happen, policitians will call for a "full investigation" and feign surprise when the public learns that lack of legal accountability is the foul byproduct of another tort reform law that's supposed to be "good for all of us."

Lawyers "Case Results" On Websites--Reading Between The Lines For What It REALLY Means

2010-04-05T22:21:00.006-04:00

Recently I glanced at a personal injury lawyer's website. It featured video clips of him lecturing visitors on the importance of choosing a lawyer who has tried cases to juries. Unaware of ANY jury verdicts this attorney has achieved, I searched the "case results" section of his website. Perhaps I was wrong, I thought, and he had obtained some decent jury verdicts after all.

Listed were numerous cases the attorney had handled. After every case, the term "awarded" was used. One MAJOR problem with use of the term "awarded:" he didn't mention whether these "awards" were in the form of a jury verdict. To the unsuspecting public, his use of the term "awarded" might be equated with actual jury verdicts. But to those of us who actually try cases to juries consistently, we know the difference. His "awards" could just as easily be insurance company "settlements" that did not involve even a lawsuit, much less a jury verdict.

What difference does the subtle distinction bewteen an "award" and a jury verdict mean? A lot. Proven ability to go the distance--from a lawsuit all the way to a jury verdict--makes insurance companies take notice that the attorney or firm will commit the resources to try the case to a verdict if a settlement offer is inadequate. It's the difference between talking the talk and walking the walk.

The only "verdict" listed on the website? It was an out of state verdict that was handled by an out of state law firm, with no indication that the Ohio attorney had any involvement with it. If an attorney or firm is going to brag about jury trial experience or "verdicts," don't you think they should be listed as such? And be their own verdicts and not some other firm's?

I do.

Liberty Mutual's "Responsibility" Means Wasting Money AND Denying Coverage To Its Policyholders

2010-04-05T15:59:00.006-04:00

Some of you may have seen Liberty Mutual's commercials about "responsibility," a PR campaign to paint themselves as a "responsible insurance company," whatever that means (think "jumbo shrimp" and other oxymorons). Recently someone sent me this link, an insufferably long movie short (hey, there's another oxymoron)that paints lawyers in an unflattering light. After watching it, I wondered: what on earth is the point? To poison the public about lawyers (gee, now there's a novel idea that's never been tried before)? To sell more Liberty Mutual policies by wasting thousands on a lame movie that takes a swipe at the legal profession?

If I were a Liberty Mutual insured/policyholder, I'd be wondering: how much did it cost to produce this hokum and how much more am I paying for my car insurance premiums because of it? Liberty's cute little lawyer bashing movie aside, let's focus on something substantive, like what you're actually buying with a Liberty Mutual auto policy and what exclusions Liberty is inserting in its policies that avoid responsibility for paying its own policyholders in Ohio auto collisions.

Here's a little exclusion that Ohio Liberty Mutual insureds might want to know about:

"We do not provide Liability Coverage for any 'insured' for 'bodily injury' to you or any 'family member.'"

What does this exclusion mean? If a family is in the Liberty insured "family vehicle" and Dad falls asleep and wrecks the car, seriously injuring his wife and kids, there is no liability coverage for Dad's negligent driving. It means that if Grandma and Grandpa allow grandson to drive their "insured vehicle" and grandson wrecks the car, injuring Grandma and Grandpa, there is no liability coverage for grandson's driving negligence.

Simple: exclusion means no responsibility to pay for family injury claims in the "insured vehicle."

Of course, there's no "movie" about all the fine print exclusions that some companies like Liberty Mutual have in their "full coverage" policies. How's that for "responsibility?"

P.S. Not all Ohio insurance companies have this exclusion. To find out more, order our book, FREE to all Ohio residents: "How To Buy Car Insurance In Ohio" (just click on the book cover on our home page).

Recent Ohio Supreme Court Decision Now Makes It Legal For Employers To Knowingly Injure Employees

2010-03-23T23:52:00.013-04:00

How can a law limiting employers' liability for workplace injuries be declared unconstitutional twice and now be suddenly declared constitutional? This week, The Ohio Supreme Court, in Kaminski v. Metal And Wire Products Inc, upheld a 2005 Ohio law that prohibits injured workers and their families from suing unless the employer deliberately intended to injure its employees. You can read about what some pundits assign as a major reason for the Ohio Supreme Court's recent decison throwing out essentially all workplace injury lawsuits here, but first some examples of the way the law used to be before Kaminski...

OHIO EMPLOYERS USED TO BE LIABLE WHEN THEY KNOWINGLY EXPOSED EMPLOYEES TO WORKPLACE DANGERS

Three examples show what kind of evidence was necessary in Ohio to hold an employer liable for certain workplace injuries:

Example No 1: You complain to your boss that the machine you are working on is malfunctioning and you are afraid you'll be injured if you continue working on it. You are told by your boss to get back to work or they'll find someone else to replace you. You return to the machine and it entraps your arm and amputates it two days later.

Example No 2: Two employees are responsible for climbing down a manhole to inspect it. No safety masks are provided to either of them. One climbs down the manhole and is overcome by fumes and is lying motionless at the bottom. The supervisor ties a rope around the second employee, who climbs down the manhole in an affort to tie the rope around the passed out employee and lift him out of the manhole. The second employee is overcome by fumes as well. Both employees die before EMS arrives.

Example No. 3: A laborer is shoveling dirt in a narrow, excavated ditch in order to lay some undergorund pipe. There is no bracing of the walls of the ditch in clear violation of OSHA standards. The walls of the ditch collapse, suffocating the worker to death. This is the second time the employer has allowed a ditch to collapse on a worker due to a lack of safety bracing. The first instance, however, did not result in serious injury.

Before the Kaminski decision, employers in Ohio could be sued for knowingly exposing workers to serious injuries or death or deliberately ignoring safety standards or legitimate employee complaints of workplace hazards. Not any more.

Strangely, the Court in Kaminski bypassed at least four previous Supreme Court cases that held employers liable if they knew with "substantial certainty" that employees would be injured and nevertheless exposed them to workplace dangers. In fact, on two prior occasions, The Supreme Court threw out as unconstitutional previous attempts by The Ohio Legislature to narrow employers' liability to a "deliberate intent to injure the employee" standard.

Not happy with these decisions, The Ohio Legislature, for a third time, passed another "deliberate intent to injure" law in 2005. Apparently not subscribing to the "three strikes and you're out" adage, The Ohio Supreme Court has now curiously upheld this law.

UNLESS YOU'RE HIT WITH A HAMMER BY YOUR BOSS YOU CANNOT NOW SUE YOUR EMPLOYER...

What does the Kaminski decision now mean for workers injured on the job? If the machine or workplace practice in question has a known history of injuries or problems and the employer does nothing, allowing employees to be injured, too bad. If the employer willfully violates workplace safety rules and employees are maimed or killed, that's OK too. No liability for the employer-- period.

What does the new "deliberate intent to injure" standard mean as a practical matter? You can't sue your employer for a workplace injury unless your employer specifically intended to injure you. How drastic is that standard? It's the same proof required to prove a murder or a criminal assault. In other words, unless your supervisor intentionally runs you over with a forklift or deliberately smashes you with a pipe or hammer, you can't sue your employer.

Why was this law passed in 2005? The business community and special interests like The Manufacturers' Association and The Chamber Of Commerce pushed for it as being "good for Ohio businesses." You know, the typical legal "predictibility" and "fairness to businesses" tort reform rhetoric that makes businesses want to flock to Ohio because of these laws, so these groups say. And now, after ruling on two previous occasions that this law was UNCONSTITUTIONAL, The Ohio Supreme Court has done a judicial 180 and blessed it as constitutional.

The Cleveland Plain Dealer said it best with this headline. According to business groups, laws like this one, and business friendly rulings from Ohio courts, are supposed to drive businesses and jobs back to Ohio. I'm sure once word of this decision gets out, businesses and jobs will come pouring in to The Buckeye State (insert sarcasm here). Never mind that injured Ohio workers will have no full recourse against companies that take safety shortcuts. Just another price to pay for making Ohio "attractive for business" I guess.

Meanwhile, we Ohioans keep waiting for all the benefits of Ohio tort reform laws almost a decade old now. You know, the decreased health, auto, and homeowners' insurance premuims we were promised, less businesses leaving Ohio, more businesses coming, and the flood of jobs...waiting...waiting...still waiting...

My headline is a little different: "Welcome To Ohio Inc."

Motorcycle Blind Spots And Large Trucks

2010-03-22T17:43:00.003-04:00

Backing a large truck is one of the most hazardous manuevers a driver faces. One major reason is due to a major blind spot behind the truck due to the sight limitations of the truck's side view mirrors.

Case in point: we recently resolved a case where an operator of a commercial garbage truck began to back up at the intersection of two major state roads in an effort to access a private driveway. The driver literally ran over a motorcyclist that was stopped behind the truck approximately 20-25 feet. Because the truck began to back up at a higher rate of speed than normal, and because of oncoming traffic in the opposite lane, the motorcyclist had nowhere to go when he perceived that the truck was continuing to back up and was not stopping. And since a motorcycle has no "reverse gear," the garbage truck driver unfortunately ran over the motorcyclist despite his efforts to evade the oncoming truck.

We employed a team of experts to re-create the accident and perform a blind spot analysis of the truck. Using an exemplar motorcycle, we established that the truck had a blind spot (defined as the distance behind the truck in which the motorcycle could not be seen in the side view mirrors) of an astonishing 106 feet.

The lessons here are obvious. First, large trucks should avoid backing up if at all possible. In this case, the inexperienced driver could have pulled directly into the driveway instead of the risky maneuver of attempting to back up over 63 feet on a state route in order to back into the driveway. Secondly, the driver failed to use a spotter (the fellow employee in the truck) to exit the truck and assist the driver in backing up, where the motorcyclist would have been easily seen. it is precisely for this reason why all Comercial Driving License (CDL) manuals strongly discourage backing and encourage the use of spotters if at all possible.

For all you motorcyclists, I imagine you would be suprised to learn that a large truck's blind spot for motorcycles is over 100 feet (it sure suprised me). So make sure you give yourself some extra distance behind a large truck if you find yourself stopped behind one. In our case our client did nothing wrong but, armed with this newfound knowledge, the extra distance you give yourself may give you the extra second or 2 you need to avoid the carelessness and inexperience of others.

Attorneys Calling After An Accident

2010-03-22T14:25:00.002-04:00

Some of my colleagues (and some of our clients as well) are reporting an increasing number of "cold calls" by attorneys to car accident victims shortly after an accident. THIS IS ILLEGAL IN OHIO AND IS PROHIBITED BY OUR ETHICS RULES!!!I'm pretty sure it's illegal in many other states as well. Any attorney or firm that phones Ohio car accident victims is subject to discipline for doing so. In fact, any shysters who engage in such illegal contact have already proven their untrustworthiness by breaking our ethical rules when they call you! How's that for a sales pitch: "I'm breaking the law by calling you but you can trust me to handle your Ohio accident claim!"

Here's what you can do if you receive one of these calls: ask for their name when they call and want to set up an appointment. Make a note of the number on your home phone or cell. And then call your local county bar association and report them immediately.

If these crooks are called on the carpet, the word will spread and it just might put a stop to this nonsense. It's hard enough dealing with the aftermath of an accident and all the concerns it brings, such as dealing with adjusters for your car repairs, who is going to pay your medical bills, and what insurance papers you should or should not sign. The last thing accident victims need is a flurry of calls from chiropractors and, now, illegal phone calls from opportunistic ambulance chasers who are breaking the law.

The old adage about "a few bad apples" holds true once again...

Hospitals Owning Up To Their Mistakes--It IS Possible

2010-03-13T07:44:00.006-05:00

Some hospitals and CEO's get it--that when mistakes happen, full accountability and transparency is the only right choice. Two hospital CEO's recently recounted preventable medical mistakes that caused unnecessary deaths in their hospitals. One CEO candidly relayed how a preventable methicillin resistant staff infection (MRSA) spread through the hospital's neo-natal intensive care unit and sadly took the lives of possibly three infants:

That infection was part of a spread of a bug in his neo-natal intensive care unit that led to the colonization of 18 infants in all, and may have contributed to the death of two others. "This was a direct result of staff not washing their hands appropriately," he said. Since that event, "we have been on a relentless hand hygiene campaign."

The crux of his, and the entire presentation hinged on this comment: "My objective today is to confess," Wiles said. "I am accountable for those unnecessary deaths in the NICU. It is my responsibility to establish a culture of safety. I had inadvertently relinquished those duties" by focusing instead on the traditional set of executive duties (financial, planning, and such).

Wiles ended his talk to the CEOs in the audience, saying, "If you cannot see the face of your own relative in a patient, or if you can not see the face of your own son or daughter in the face of a distraught nurse or doctor who has made an error, I suggest that your executive talents would be better placed in other industries."

The other story from the second CEO is equally compelling. These gentlemen deserve credit and accolades for stepping to the plate, admitting medical errors when they occur, and making necessary changes.

Too often, here's what usually happens, in this order: there is a huge medical mistake, or the family knows enough to suspect one was made, inquiries are made, the family is shuffled around to various officials who "don't really know what happened" but who "will get back to you", etc. Bottom line: the family is left with no real answers as to what happened. When the dust settles and the family finally obtains the "official" medical records, it's analagous to a hunk of swiss cheese: lots of holes or gaps, in the form of a lack of information. Or worse yet, information or data that has been destroyed or is curiously "missing."

A culture of safety? The norm is a culture of outright denial after a medical event. The eventual lawsuit is filed, where the hospital is given an opportunity to admit responsibility, which is usually denied even when the mistake is relatively obvious. Some medical observers have argued that until hopsitals develop a culture of safety similar to the airline industry, preventable medical errors will continue to be prevalent. It is estimated that upwards of 100,000 patients die every year in hospitals due to preventable medical mistakes.

The candor of the CEO's is refreshing especially when compared to some for profit hospital chains where a "business model" of hospital acquisitions, "earnings per share," and EBITDA (earnings before interest, taxes, depreciation, and amortization)occupies a higher pecking order than a culture of patient safety.

Let's Get Rid Of All Personal Injury Lawsuits And See What Happens

2010-03-08T10:20:00.010-05:00

With apologies to Jonathan Swift's classic "A Modest Proposal,"** the thought occurred to me: what if we simply banned personal injury lawsuits? After all, according to many pundits, "think tanks," and politicians, aren't they simply a drain on our national economy? According to The Chamber Of Commerce, they stifle innovation and product development, drive up the cost of goods and services, and insurance.

Similarly, medical malpractice lawsuits are claimed to cause physicians to practice "defensive medicine," causing a drain on our health care system, and increasing health care costs and insurance. According to the medical industry, this lawsuit "crisis" has spawned the need to cap or limit victims' recovery even in cases of preventable and serious malpractice injuries.

If things are THIS bad, and one of the root causes is our "litigation culture," "runaway juries," and our "sue happy" society, maybe we should consider doing something radical: an outright ban on all personal injury lawsuits. Maybe not a permanent ban, but a reasonable "moratorium" for a set number of years. Freed of this lawsuit millstone on our national economy, businesses will thrive, unencumbered by pesky and expensive lawsuits. Doctors and hospitals will be freed from the shackles of over the shoulder second guessing by personal injury lawyers seeking to cash in on patient care and and routine operations gone horribly wrong.

This moratorium, coupled with reliance on free markets and a ban on nitpicking and costly governmental regulation, will be good economically for everybody. Total freedom of the marketplace, from manufactured products to medicine to the financial services industry, where each person is free to enter into any transaction or service based upon unadalterated trust.

That large foreign object left inside you during routine surgery? Sorry, but doctors and hospitals need relief from the burdensome litigation costs associated with your injury, so not being able to sue them will be good for you--and all of us--in the long run. Your Toyota suddenly accelerated and caused a crash that killed a family member or an innocent bystander? Well, Toyota needs to compete in a competitive and underperforming economy, and if they get sued too many times, they might be forced to leave Texas and other states where they have factories, and those jobs are too important to sacrifice at this time.

This moratorium will only apply to personal injury lawsuits. Businesses need to maintain the right to have unfettered access to the courts to enforce contracts and valuable business deals, which we all know are vital to their bottom lines and their continued viability. Of course, the benefits of their full access to courts and full recovery of their business damages will be passed on to all of us in the form of reduced prices and more jobs.

Our need for a robust and healthy economy is just too important at this time in our history to be bogged down with money draining personal injury lawsuits and shopworn notions of "accountability." therefore, if you've been maimed or lost a loved one due to someone's carelessness, I'm sure you understand the need to sacrifice your interest in lawsuits for the good of the whole. Consider it your patriotic duty as an American, similar to the personal sacrifices we made during World War II.

All you injured folks, and the scores of personal injury attorneys who bring these lawsuits, must realize that the benefits of suing occasional wrongdoers are outweighed by the collective harm and expense due to all these lawsuits. So it is necessary to put your rights on hold.

A national lawsuit "timeout"--what's unreasonable about that? What is being proposed right now--a national movement towards limiting malpractice victims' recovery, is a necessary first step towards this goal, but will do nothing to cure the annoying problem of continued lawsuits against doctors and hospitals.

Therefore, when you show up at town hall meetings and insist on legal reforms limiting peoples' rights, consider asking your Congressional representative to get a spine and stop the lame "watering down" of their rights. Tell him or her that you want the ultimate solution to the vexing lawsuit problem and cut lawsuits out of the mix altogether. Tell them that you are a TRUE tort reformer, ready and willing to forego your rights as a patriotic, "get government out of my life for once and for all" American.

So let's have a national ban on personal injury lawsuits for, say, five short years or so and let's see what happens.

Sometimes the quickest way to usher out a movement--in this case, "tort reform"--is to hasten its coming. After all, every "movement" or "reform" eventually hits home, and mutates from an abstract proposition to something personal. Like removing the wrong breast beacuse the pathology slide was misread or mixed up with another patient. Or a defective car or bus that careens out of control and kills a bunch of people. But, hey, sacrifices must be made for the good of everyone. If you are a true believer, I'm sure you'll be first in line to give up your rights.

Which brings me to the real world definiton of a "frivolous lawsuit:" one other than mine. Tort reform sounds good from a distance until it is applied to you, and then it's not so appealing.

** For the real meaning of Swift's time honored "A Modest Proposal," click here

Hospital Patient Safety Tip: Beware Weekend Medicine

2010-03-06T10:12:00.009-05:00

Two years ago we wrote "Nine Tips To Keep You Safe When Dealing With Doctors And Hospitals." (available for free on our website). These patient safety tips are lessons we learned from our experience in litigating Ohio medical malpractice lawsuits. One frequent observation we noted from handling malpractice cases: having a surgery on a Friday often turned disaterous for the patient. It was our observation that "weekend medicine" sometimes (and certainly not always) meant a lack of attention to detail, delay in responding to the patient's symptoms, and delay in physician response to phone calls, pages, etc.
In fact, in our patient safety piece we wrote:

3. “Can We Reschedule This for a Tuesday?”

Avoid major surgery on Fridays if at all possible. We have seen a significant correlation between Friday surgeries and serious mistakes that occur over the weekend. Perhaps the physician is called on a Saturday evening and doesn’t want to come in, directing important medical decisions to others who aren’t as familiar with all the medical details. Staff may be reduced; the possibilities are endless. And we’re willing to bet that if you asked your physician or nurse friend about this issue, they might agree.

This may not come as a surprise as most people people don't like to work weekends, and medical professionals on call might be busy with personal "stuff."

But until recently, our observations from handling Ohio surgical error or hospital malpractice cases were unscientific and anecdotal at best. Lo and behold, a recent medical study concludes that weekend hopsital care is not as prompt as weekday care, and may be bad for your health.

This study essentially validates our unscientific observations about weekend medicine. What's the takeaway from all this for the public? If your loved one is in the hospital on a weekend, be more vigilant. Stay a little longer at bedside. Be more persistent with staff. And don't be afraid to speak up.