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.
Monday, April 5, 2010
Liberty Mutual's "Responsibility" Means Wasting Money AND Denying Coverage To Its Policyholders
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:
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).
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).
Tuesday, March 23, 2010
Recent Ohio Supreme Court Decision Now Makes It Legal For Employers To Knowingly Injure Employees
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."
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."
Monday, March 22, 2010
Motorcycle Blind Spots And Large Trucks
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.
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
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...
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...
Saturday, March 13, 2010
Hospitals Owning Up To Their Mistakes--It IS Possible
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:
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.
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.
Monday, March 8, 2010
Let's Get Rid Of All Personal Injury Lawsuits And See What Happens
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
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
Saturday, March 6, 2010
Hospital Patient Safety Tip: Beware Weekend Medicine
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:
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.
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.
Thursday, March 4, 2010
U.S. Health Care Wastes 700 Billion Per Year...And The Problem With Defining "Defensive Medicine"
A recent report highlights the colossal waste imposed by our health care system, and the price tag is a whopping 700 billion per year. According to the report, 60% of this waste is attributable to outright fraud and repeated medical mistakes.
The remaining 40% is attributable to unnecessary tests, commonly known as "defensive medicine," i.e physician ordered tests to avoid malpractice exposure. The AMA and certain politicians are famous for decrying "defensive medicine" as a reason for medical liability "reform."
But here's the problem: how do you OBJECTIVELY define what exactly is defensive medicine? A few examples illustrate how that term can be twisted and "spun" for political mileage. A few years back, I developed chest arm pain and numbness while driving. I visited my family doctor, whom I respect greatly. When I explained my symptoms, he said: "You exercise and are not overweight, and I am convinced that your symptoms are not heart related. However, to make absolutely sure, I will order a stress test just to be safe."
Sure enough, the test was negative. I can assure you that my doctor ordered this test for one reason: he was concerned for my well being, and wanted to rule out the rare possibility that I had a heart problem.
Yet, ordering my stress test could have easily been labelled "defensive medicine" by those inclined to label it as such in order to proclaim that malpractice avoidance was the sole reason for ordering the test. That's where the defensive medicine label becomes mushy; many tests are ordered to rule out the low possibility of a potentially lethal problem.
Likewise, if you go to the ER with the worst excruciating headache of your life, and have no history of massive headaches, chances are that you probably don't have a brain bleed or aneurysm. Yet, if there's a 5% chance you're experiencing a brain bleed, there's a good chance you might drop dead if you leave the ER. So if the ER doc orders a CT Scan to rule out a brain bleed, is is being ordered it SOLELY to cover the doctor's butt against a malpractice claim, or is it being ordered as a cautious and prudent measure to rule out the possibility of a remote but lethal condition?
Ask anyone if they would want a CT Scan under those circumstances and 100% of all people would want it. Yet, a physician might claim that this was purely "defensive medicine."
Moral of the story? It's easy and convenient to label tests as "defensive medicine," even if they can be medically justified. But one doctor's defensive medicine is sometimes prudent medicine in the eyes of the patient.
All this aside, here's the absolute BEST question to ponder on this issue: would the doctor order the CT Scan if it were his parent, spouse, or child, or would he or she just send them home? Hmmm....
The remaining 40% is attributable to unnecessary tests, commonly known as "defensive medicine," i.e physician ordered tests to avoid malpractice exposure. The AMA and certain politicians are famous for decrying "defensive medicine" as a reason for medical liability "reform."
But here's the problem: how do you OBJECTIVELY define what exactly is defensive medicine? A few examples illustrate how that term can be twisted and "spun" for political mileage. A few years back, I developed chest arm pain and numbness while driving. I visited my family doctor, whom I respect greatly. When I explained my symptoms, he said: "You exercise and are not overweight, and I am convinced that your symptoms are not heart related. However, to make absolutely sure, I will order a stress test just to be safe."
Sure enough, the test was negative. I can assure you that my doctor ordered this test for one reason: he was concerned for my well being, and wanted to rule out the rare possibility that I had a heart problem.
Yet, ordering my stress test could have easily been labelled "defensive medicine" by those inclined to label it as such in order to proclaim that malpractice avoidance was the sole reason for ordering the test. That's where the defensive medicine label becomes mushy; many tests are ordered to rule out the low possibility of a potentially lethal problem.
Likewise, if you go to the ER with the worst excruciating headache of your life, and have no history of massive headaches, chances are that you probably don't have a brain bleed or aneurysm. Yet, if there's a 5% chance you're experiencing a brain bleed, there's a good chance you might drop dead if you leave the ER. So if the ER doc orders a CT Scan to rule out a brain bleed, is is being ordered it SOLELY to cover the doctor's butt against a malpractice claim, or is it being ordered as a cautious and prudent measure to rule out the possibility of a remote but lethal condition?
Ask anyone if they would want a CT Scan under those circumstances and 100% of all people would want it. Yet, a physician might claim that this was purely "defensive medicine."
Moral of the story? It's easy and convenient to label tests as "defensive medicine," even if they can be medically justified. But one doctor's defensive medicine is sometimes prudent medicine in the eyes of the patient.
All this aside, here's the absolute BEST question to ponder on this issue: would the doctor order the CT Scan if it were his parent, spouse, or child, or would he or she just send them home? Hmmm....
Wednesday, February 24, 2010
Toyota Recall, Sudden Acceleration Deaths, Products Liability Lawsuits And Tort Reform--Who Benefits?
The answer: Toyota. Let's assume for the sake of argument that the Toyota vehicles' sudden acceleration problems are due to a "defective product" (a defect caused by improper design/testing, manufacture, or failing to adequately warn consumers of defects, problems etc). How would Ohio law treat these defects, Toyota's liability, and the families of the victims (at least 34 deaths have been attributed to sudden acceleration)?
Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.
Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?
Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.
Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.
Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.
What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.
Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.
So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.
Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.
And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?
The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.
Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.
Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?
Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.
Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.
Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.
What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.
Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.
So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.
Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.
And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?
The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.
Tuesday, February 23, 2010
"Ice Storm" Frivolous Lawsuit Would Be Tossed Out In Ohio
A Massachusetts man sued the city of Windham, New Hampshire and the state for a 2008 collision at an intersection where the traffic signals were disabled. One large problem, however: electrical power at the intersection, and many others, was gone because of a huge ice storm that affected 1.7 million local residents.
I'm not sure what New Hampshire law says but in Ohio:
1. A non-functional intersection turns it into a 4 way stop where every driver needs to use reasonable care when proceeding through the intersection; and
2. Cities and The State Of Ohio are legally immune from liability even if they were negligent in fixing the signal, were too slow to fix it, or did not adequately warn motorists. There are limited exceptions to this rule but they don't appear to apply to these facts.
Sorry but I wouldn't touch this case with a ten foot pole if it came to me in Ohio. A major ice storm knocks out power to millions, two cars crash at a downed intersection and one of the passengers is blaming the state for the crash? Why didn't he sue his friend for not proceeding through the intersection--IN AN ICE STORM--carefully?
In fact, if this case were filed in Ohio law there's a good chance a judge might find it frivolous. In Ohio, a frivolous lawsuit or claim is one that (1)serves merely to harass or maliciously injure another party, or is for another improper purpose; (2)is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law; or (3) has no evidentiary support or is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Additionally, attorneys who file them can be forced to pay sanctions such as attorneys' fees. Surprisingly, many people demand laws against "frivolous lawsuits" unaware that states like Ohio have had laws outlawing them since the 1980's.
I'm not sure what New Hampshire law says but in Ohio:
1. A non-functional intersection turns it into a 4 way stop where every driver needs to use reasonable care when proceeding through the intersection; and
2. Cities and The State Of Ohio are legally immune from liability even if they were negligent in fixing the signal, were too slow to fix it, or did not adequately warn motorists. There are limited exceptions to this rule but they don't appear to apply to these facts.
Sorry but I wouldn't touch this case with a ten foot pole if it came to me in Ohio. A major ice storm knocks out power to millions, two cars crash at a downed intersection and one of the passengers is blaming the state for the crash? Why didn't he sue his friend for not proceeding through the intersection--IN AN ICE STORM--carefully?
In fact, if this case were filed in Ohio law there's a good chance a judge might find it frivolous. In Ohio, a frivolous lawsuit or claim is one that (1)serves merely to harass or maliciously injure another party, or is for another improper purpose; (2)is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law; or (3) has no evidentiary support or is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Additionally, attorneys who file them can be forced to pay sanctions such as attorneys' fees. Surprisingly, many people demand laws against "frivolous lawsuits" unaware that states like Ohio have had laws outlawing them since the 1980's.
Thursday, February 11, 2010
Is Your Long Term Acute Care Hospital Safe?
Yesterday The New York Times ran a lengthy expose` on patient safety concerns at long term acute care hospitals (LTAC's), specifically Select Medical Corporation, a for profit, publically traded company that operates 89 long term hospitals across the U.S. Many of these hospitals are known as "hospitals within a hospital," as typically entities like Select lease a floor of an existing hospital and set up their own separate hospital for patients' long term care needs.
The article is a must read for anybody considering a transfer of their loved ones to an LTAC facility. Interestingly, this article comes on the heels of a case we recently litigated against a long term acute care hospital arising out of the death of a ventilator dependent patient. As a result of that case, we prepared an article for consumers,reproduced in full below, entitled: LONG TERM ACUTE CARE HOPSITALS AND ARTIFICIAL AIRWAYS: WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW. Hopefully both articles will provide real guidance to families considering these facilities beyond their fancy brochures and websites touting their excellence...
LONG TERM ACUTE CARE HOSPITALS & ARTIFICIAL AIRWAYS:
WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW
Long term acute care facilities ( LTAC’s) in many ways are like hospitals: they care for critically ill patients who sustain strokes, brain injuries, and other serious conditions.
Frequently these patients are transferred to LTAC’s with artificial airways in place, such as an endotracheal (ETT) or, more commonly, a tracheostomy tubes. Because these patients are ventilator dependent, artificial airways are their “lifeline” for supplying oxygen to their vital organs. If artificial airways are dislodged or compromised for any reason, brain damage or death can occur within a matter of minutes.
LTAC’s must have clear guidelines in place as to how staff will respond to airway emergencies. However, in our experience, some LTAC’s give little thought to preventing airways from being dislodged, while others are unprepared to provide safe emergency airway management when airways become dislodged.
PREVENTING DISLODGED AIRWAYS
Airways can become dislodged during patient turning or repositioning when staff causes excessive tension on the airway tube or the ventilator tubing (which connects the airway tube to the ventilator). Surprisingly, some LTAC’s allow nurses’ aides to turn artificial airway patients without supervision of a nurse or respiratory therapist (RT). Whether the LTAC has a written policy mandating the presence of a nurse or an RT during patient turns is a crucially important question for patients’ families to ask LTAC staff. If there is no such policy, it is a red flag that the LTAC has not adopted a “prevention first” mentality to patient airway safety.
Equally important is whether the LTAC has policies to alert staff that a patient’s tracheostomy is “fresh” or new, commonly defined as one that is 7-10 days old. If a fresh trach becomes dislodged, it is a medical emergency requiring immediate action to restore an open airway and provide life sustaining oxygen. Some LTAC’s have written policies requiring “fresh trach” signage to be placed above the patient’s bed as an additional warning to staff. Lack of mandatory signage is another red flag that the LTAC does not fully appreciate the hazards associated with these vulnerable airways.
RESPONDING TO AIRWAY EMERGENCIES
“Airway management” is the process of ensuring that a patient has a patent or open airway for life sustaining oxygen. When an airway becomes dislodged, staff must act immediately to restore the airway. Obvious questions to ask staff are: Who are the first responders to an airway emergency? Does the LTAC have an in house physician to respond to an emergency at all times, or is troubleshooting this emergency delegated to in house RT’s?
If RT’s are the designated first responders, are they trained and competent to intubate patients – one of the most fundamental aspects of airway management? Intubation is the process of inserting a breathing tube into a patient’s mouth or nose and into their upper airway in order to provide oxygen to the lungs. Surprisingly, some LTAC’s do not train their RT’s to intubate, even when there is no physician-responder available on site.
An LTAC’s emergency response protocols are even more critical when a fresh trach becomes dislodged. The surgical hole or “stoma” in the trachea created by the original tracheostomy surgery will close rapidly if the tube is dislodged, because the hole has not matured. A serious risk of re-inserting any trach tube is misplacing it into the tissues surrounding the patient’s trachea, known as “false passage” placement. This results in forcing oxygen into the patient’s face, neck, and chest instead of the lungs, and is a serious and life threatening complication.
Because of this risk, some facilities have clear policies prohibiting RT’s from attempting to place any trach tube into a fresh trachea hole. Instead, many facilities require that RT’s call a “Code Blue” and provide oxygen through a bedside oxygen “AMBU” bag rather than attempt a risky emergency trach tube change.
Amazingly, some LTAC’s permit RT’s to attempt the dangerous practice of inserting a new trach tube into a fresh tracheostomy hole.
To summarize, any LTAC accepting patients with artificial airways should be prepared to answer the following questions:
1. Do you allow nurses aides to turn patients with airways with no nurse or RT supervision?
2. Do you require special signage above patients’ beds warning staff of a fresh or new trach?
3. Do you have a physician on hand at all times to respond to airway emergencies?
4. Are your RT’s competent to intubate patients who’ve lost their airway for whatever reason?
5. Do you prohibit your RT’s from re-inserting or replacing a dislodged fresh trach?
The more “No” answers you receive, the more likely the LTAC has not implemented practices that promote a culture of safety when it comes to protecting patients' artificial airways. Given that the maximum foreseeable harm of a dislodged airway is brain damage or death, there is no excuse for an LTAC’s systemic lack of preparedness when it comes to patient airway safety. Their lack of foresight should not expose your loved one to increased risks while recuperating from a serious illness.
The article is a must read for anybody considering a transfer of their loved ones to an LTAC facility. Interestingly, this article comes on the heels of a case we recently litigated against a long term acute care hospital arising out of the death of a ventilator dependent patient. As a result of that case, we prepared an article for consumers,reproduced in full below, entitled: LONG TERM ACUTE CARE HOPSITALS AND ARTIFICIAL AIRWAYS: WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW. Hopefully both articles will provide real guidance to families considering these facilities beyond their fancy brochures and websites touting their excellence...
LONG TERM ACUTE CARE HOSPITALS & ARTIFICIAL AIRWAYS:
WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW
Long term acute care facilities ( LTAC’s) in many ways are like hospitals: they care for critically ill patients who sustain strokes, brain injuries, and other serious conditions.
Frequently these patients are transferred to LTAC’s with artificial airways in place, such as an endotracheal (ETT) or, more commonly, a tracheostomy tubes. Because these patients are ventilator dependent, artificial airways are their “lifeline” for supplying oxygen to their vital organs. If artificial airways are dislodged or compromised for any reason, brain damage or death can occur within a matter of minutes.
LTAC’s must have clear guidelines in place as to how staff will respond to airway emergencies. However, in our experience, some LTAC’s give little thought to preventing airways from being dislodged, while others are unprepared to provide safe emergency airway management when airways become dislodged.
PREVENTING DISLODGED AIRWAYS
Airways can become dislodged during patient turning or repositioning when staff causes excessive tension on the airway tube or the ventilator tubing (which connects the airway tube to the ventilator). Surprisingly, some LTAC’s allow nurses’ aides to turn artificial airway patients without supervision of a nurse or respiratory therapist (RT). Whether the LTAC has a written policy mandating the presence of a nurse or an RT during patient turns is a crucially important question for patients’ families to ask LTAC staff. If there is no such policy, it is a red flag that the LTAC has not adopted a “prevention first” mentality to patient airway safety.
Equally important is whether the LTAC has policies to alert staff that a patient’s tracheostomy is “fresh” or new, commonly defined as one that is 7-10 days old. If a fresh trach becomes dislodged, it is a medical emergency requiring immediate action to restore an open airway and provide life sustaining oxygen. Some LTAC’s have written policies requiring “fresh trach” signage to be placed above the patient’s bed as an additional warning to staff. Lack of mandatory signage is another red flag that the LTAC does not fully appreciate the hazards associated with these vulnerable airways.
RESPONDING TO AIRWAY EMERGENCIES
“Airway management” is the process of ensuring that a patient has a patent or open airway for life sustaining oxygen. When an airway becomes dislodged, staff must act immediately to restore the airway. Obvious questions to ask staff are: Who are the first responders to an airway emergency? Does the LTAC have an in house physician to respond to an emergency at all times, or is troubleshooting this emergency delegated to in house RT’s?
If RT’s are the designated first responders, are they trained and competent to intubate patients – one of the most fundamental aspects of airway management? Intubation is the process of inserting a breathing tube into a patient’s mouth or nose and into their upper airway in order to provide oxygen to the lungs. Surprisingly, some LTAC’s do not train their RT’s to intubate, even when there is no physician-responder available on site.
An LTAC’s emergency response protocols are even more critical when a fresh trach becomes dislodged. The surgical hole or “stoma” in the trachea created by the original tracheostomy surgery will close rapidly if the tube is dislodged, because the hole has not matured. A serious risk of re-inserting any trach tube is misplacing it into the tissues surrounding the patient’s trachea, known as “false passage” placement. This results in forcing oxygen into the patient’s face, neck, and chest instead of the lungs, and is a serious and life threatening complication.
Because of this risk, some facilities have clear policies prohibiting RT’s from attempting to place any trach tube into a fresh trachea hole. Instead, many facilities require that RT’s call a “Code Blue” and provide oxygen through a bedside oxygen “AMBU” bag rather than attempt a risky emergency trach tube change.
Amazingly, some LTAC’s permit RT’s to attempt the dangerous practice of inserting a new trach tube into a fresh tracheostomy hole.
To summarize, any LTAC accepting patients with artificial airways should be prepared to answer the following questions:
1. Do you allow nurses aides to turn patients with airways with no nurse or RT supervision?
2. Do you require special signage above patients’ beds warning staff of a fresh or new trach?
3. Do you have a physician on hand at all times to respond to airway emergencies?
4. Are your RT’s competent to intubate patients who’ve lost their airway for whatever reason?
5. Do you prohibit your RT’s from re-inserting or replacing a dislodged fresh trach?
The more “No” answers you receive, the more likely the LTAC has not implemented practices that promote a culture of safety when it comes to protecting patients' artificial airways. Given that the maximum foreseeable harm of a dislodged airway is brain damage or death, there is no excuse for an LTAC’s systemic lack of preparedness when it comes to patient airway safety. Their lack of foresight should not expose your loved one to increased risks while recuperating from a serious illness.
Saturday, February 6, 2010
The Final Argument You'll Never Give
Medical malpractice cases are like a preparing for a marathon. Most take over a a year to get ready for trial. A recent one our office handled involved almost twenty depositions scattered all over the country. As the trial approaches, it becomes organized chaos. Cross and direct examinations, medical illustrations, lining up witmesses and subpoenas, exhibits, and the opening statement all must be prepared. What's more, there's always a flurry of last minute motions that you have to respond to. All this occurs at the same time when there are occasional last minute attempts to settle the case.
The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.
But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.
You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.
And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.
This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.
I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.
Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.
These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.
Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."
But I can still share some of it here. Consider it my gift to the Nutroll lady.
The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.
But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.
You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.
And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.
This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.
I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.
Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.
These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.
Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."
But I can still share some of it here. Consider it my gift to the Nutroll lady.
Wednesday, February 3, 2010
Hospital Whistleblower Lawsuit: Where The Drumbeat of "Defensive Medicine" Meets The Cowbell Of Fraud...
Those arguing for medical lawsuit "reforms" repeat over and over that doctors and hospitals are forced to practice "defensive medicine" because of a fear of lawsuits, which drives up the cost of healthcare, etc. What is often ignored by the medical and insurance groups pushing this argument is that some doctors and hospitals stand to gain financially from the very tests and procedures they love to label as "defensive medicine."
Recently, a Cincinnati hopsital agreed to settle a whistleblower lawsuit brought by a cardiologist and the federal government alleging a fraudulent "kickback scheme" where cardiologists' access to the hospital for heart procedures was allegedly based upon the revenue they generated for the hospital. And while Christ Hospital denied any sort of wrongdoing, it agreed to a whopping $100 million settlement with the government in order to reimburse Medicare.
You can draw your own conclusions from the fact of the settlement and, more importantly, the amount of it. These allegations, if true, show how a hospital's business model impacts patient care (more tests being run on patients), the hospital's bottom line, AND the cost of healthcare. After all, if hospitals are billing Medicare for more tests as part of some suspect billing or kickback scheme, what is that doing to our Medicare funds? (Depleting them is the right answer...).
Yet, this $100 million head turner of a settlement at one hospital will not get much attention from the politicos. They're too busy dragging out and continuing to beat the "trial lawyers are causing doctors and hospitals to practice defensive medicine" drum at every opportunity.
This piece of news is more like a small cowbell instead of a drum. And as we all know from the now famous Will Farrell Saturday Night Live skit, we all need "More Cowbell."
Wednesday, January 20, 2010
More Corporate Lawsuit Abuse: North Face Sues Tiny "South Butt" Clothing Line (I'm Not Making This Up)
Most of us cold climate folks have heard of the North Face Clothing line. Recently a biomedical student started a small clothing line in his spare time that parodied the North Face name. Proving that he had a sense of humor, he named his line "South Butt."
Big conglomerate North Face Clothing? Meet tiny, one man show "South Butt" clothing line. Tiny South Butt, meet North Face's team of lawyers and a lawsuit. North Face is suing the student for copyright infringment and other legal harms.
Experts interviewed in the article predicted that the lawsuit will probably go nowhere. In fact, it's likely to backfire. Not only does this frivolous lawsuit make North Face look petty and paranoid, it will probably result in more "South Butt" sales.
The irony here is that corporate America complains all the time about "frivolous lawsuits" that drive up the cost of goods. This lawsuit shows that corporations often file their own ill founded lawsuits and don't hseitate to hire their legions of lawyers to throw their weight around. So where's The Chamber Of Commerce on this laugher of a lawsuit? Why aren't they rushing in to defend this student like they did when the dry cleaner in Washington D.C. was sued for $54 million by a malcontent customer whose pants were lost (an equally stupid lawsuit)?
I could never pull the trigger on North Face clothes--a little to expensive for my tastes. This is an even better reason not to buy their line. Good luck, South Butt dude. Although apparently opposites do attract, here, in the form of a lawsuit, I hope NF gets some sense and drops this suit.
Big conglomerate North Face Clothing? Meet tiny, one man show "South Butt" clothing line. Tiny South Butt, meet North Face's team of lawyers and a lawsuit. North Face is suing the student for copyright infringment and other legal harms.
Experts interviewed in the article predicted that the lawsuit will probably go nowhere. In fact, it's likely to backfire. Not only does this frivolous lawsuit make North Face look petty and paranoid, it will probably result in more "South Butt" sales.
The irony here is that corporate America complains all the time about "frivolous lawsuits" that drive up the cost of goods. This lawsuit shows that corporations often file their own ill founded lawsuits and don't hseitate to hire their legions of lawyers to throw their weight around. So where's The Chamber Of Commerce on this laugher of a lawsuit? Why aren't they rushing in to defend this student like they did when the dry cleaner in Washington D.C. was sued for $54 million by a malcontent customer whose pants were lost (an equally stupid lawsuit)?
I could never pull the trigger on North Face clothes--a little to expensive for my tastes. This is an even better reason not to buy their line. Good luck, South Butt dude. Although apparently opposites do attract, here, in the form of a lawsuit, I hope NF gets some sense and drops this suit.
Thursday, January 14, 2010
Correction: Ohio's Medical "Tort Reform" Does Not Apply To Medical Malpractice Wrongful Death Cases
Recently a colleague of mine pointed out an error in my past blog posts discussing Ohio's "caps" or limits on what Ohio medical malpractice victims can recover in lawsuits. In those previous posts, I pointed out that the Ohio Legislature in 2003 passed laws limiting malpractice victims' recovery to arbitrary caps of anywhere from $250,000 to $350,000.
She said to me: "You forgot to mention that there are no caps or limits in cases of wrongful death." And she's right. The reason for this is that Section 19a, Article I of The Ohio Constitution states that damages recoverable in wrongful death claims
cannot be limited. Since The Ohio Constitution trumps any attempt by the Legislature to contradict it, The Legislature could not pass any caps in wrongful death cases.
So there you have it. I'm just glad someone was actually reading some of this stuff and paying attention.
She said to me: "You forgot to mention that there are no caps or limits in cases of wrongful death." And she's right. The reason for this is that Section 19a, Article I of The Ohio Constitution states that damages recoverable in wrongful death claims
cannot be limited. Since The Ohio Constitution trumps any attempt by the Legislature to contradict it, The Legislature could not pass any caps in wrongful death cases.
So there you have it. I'm just glad someone was actually reading some of this stuff and paying attention.
Sunday, January 10, 2010
Do We Need Any MORE PROOF That Medical Tort Reform Will Not Lower Health Care Costs? (But Here's More Proof Anyway...)
As I have said repeatedly, passing medical malpractice tort reform will do nothing to lower the spiraling costs of Ohioans' health care premuims. Two recent articles prove (again) how bogus this argument is.
The first is a December 17, 2009 internet article entitled "Medical Mutual Of Ohio's View Of Healthcare Reform, authored by George Stadtlander, its Chief Managed Care Officer. The article discusses the pros and cons of the current proposals in Congress, but this little ditty really caused me to rise out of my chair:
Really? What this article and Mr. Stadtlander did NOT mention is that we have had medical "tort reform" in Ohio now for over six years! Since 2003, there have been arbitrary caps or limits on what injured Ohioans can recover due to negligent medical mistakes. These caps range anywhere from $250,000 to $350,000 depending upon the circumstances. Essentially, your rights were sold as a way to keep healthcare costs down. In other words, limiting your rights in lawsuits was good for you and all Ohioans because you would pay less for health insurance. Sounds all well and good, right?
So, the question becomes: have these "reforms" worked to lower our insurance premuims? Interestingly, just one month before this article, The Canton Repository reported in a comprehensive piece that local businesses are being hammered with soaring healthcare costs.
Curiously, Medical Mutual has increased premuims 12-13%, according to Mr. Stadtlander, who was quoted in the Repository article:
The economy? The stimulus? Swine flu? Technology? Lung transplants? Aliens? (OK, I added that one). In other words, insurance companies can come up with any reasons they want to continue to increase premuims. And when they lobby for laws limiting the rights of Ohioans and continue to claim that these laws will bring down insurance premiums, we now have proof that it is a sham.
Yet, a majority of Americans favor "medical malpractice reform," and the paradoxical limiting of their own legal rights at rallies and town hall meetings. Perhaps someday they'll eventually wake up and realize that laws limiting their legal redress when a hospital has left a sponge or a towel inside them are potentially as noxious as limiting their Second Amendment right to carry a gun.
The first is a December 17, 2009 internet article entitled "Medical Mutual Of Ohio's View Of Healthcare Reform, authored by George Stadtlander, its Chief Managed Care Officer. The article discusses the pros and cons of the current proposals in Congress, but this little ditty really caused me to rise out of my chair:
Another huge issue in this debate is tort reform. There have been proposals for comprehensive tort reform that would reduce the cost of delivery, but they have been widely ignored.
Really? What this article and Mr. Stadtlander did NOT mention is that we have had medical "tort reform" in Ohio now for over six years! Since 2003, there have been arbitrary caps or limits on what injured Ohioans can recover due to negligent medical mistakes. These caps range anywhere from $250,000 to $350,000 depending upon the circumstances. Essentially, your rights were sold as a way to keep healthcare costs down. In other words, limiting your rights in lawsuits was good for you and all Ohioans because you would pay less for health insurance. Sounds all well and good, right?
So, the question becomes: have these "reforms" worked to lower our insurance premuims? Interestingly, just one month before this article, The Canton Repository reported in a comprehensive piece that local businesses are being hammered with soaring healthcare costs.
Curiously, Medical Mutual has increased premuims 12-13%, according to Mr. Stadtlander, who was quoted in the Repository article:
REASONS FOR INCREASES
Employees filing a greater number of costly claims in recent years is the reason some employers are seeing massive increases in premiums, said George Stadtlander, executive vice president for Medical Mutual.
Stadtlander said Medical Mutual has raised rates by an average of 12 to 13 percent — by as little as 5 percent and as much as 30 percent.
The health insurer executive said the economy could be playing a role. Many employees who have been laid off are younger, less senior workers who are healthier and file fewer claims. Those who remain are often older Baby Boomers more likely to get medical treatment.
Also, federal stimulus spending may be playing a role. The federal government is paying 65 percent of premiums under COBRA, the mandate that permits people who have been laid off to stay on employer group health plans for at least 18 months, normally at the laid-off workers’ expense. Stadtlander says those with medical problems are the ones that tend to sign up for COBRA.
And the swine flu has driven more people to doctor’s offices and hospitals and pushed up demand for prescription drugs, resulting in a higher number of claims, Stadtlander said.
AultCare has a different explanation. The Canton insurer’s spokeswoman, Robin Clark, blames not more claims, but rather the general inflation of health care costs.
She said AultCare has kept rate increases to well below 10 percent this year for the bulk of its policyholders, especially since medical providers in its local network charge less than providers in larger communities.
But Clark said small employers are more likely to see rates rise due to an expensive claim filed by one employee, because the impact of a single worker’s claim is magnified in a smaller pool.
One final reason, according to Stadtlander, is advances in extremely costly medical technology. Its greater availability is leading to more catastrophic claims of more than $250,000, he said.
“A lung transplant is an expensive procedure,” he said.
The economy? The stimulus? Swine flu? Technology? Lung transplants? Aliens? (OK, I added that one). In other words, insurance companies can come up with any reasons they want to continue to increase premuims. And when they lobby for laws limiting the rights of Ohioans and continue to claim that these laws will bring down insurance premiums, we now have proof that it is a sham.
Yet, a majority of Americans favor "medical malpractice reform," and the paradoxical limiting of their own legal rights at rallies and town hall meetings. Perhaps someday they'll eventually wake up and realize that laws limiting their legal redress when a hospital has left a sponge or a towel inside them are potentially as noxious as limiting their Second Amendment right to carry a gun.
Wednesday, January 6, 2010
Is There A Formula For Settling A Personal Injury Case?
In short, no. Occasionally, clients will ask: "I've heard that insurance companies will take your medical bills and multiply them by three to make their offer--is this true?"
Perhaps 15 or 20 years ago, this was not uncommon in our experience, although not an ironclad rule. However, times have changed. First, as jury verdicts started to trend downward in the mid-90's and beyond, this "rule" started to disappear. Second, many insurance companies invested millions for fancy computer modeling programs designed to ratchet down claim evaluations. Allstate, for example, invested multi-millions for a program known as "Colussus," which inputs "data" regarding an accident victim's injuries and bills, etc, and spits out an offer, frequently more pinched than a traditional "3 times" multiplier. Some people would characterize this as "garbage in, garbage out," but the point is that any rigid formula or equation for evaluating injury claims frequently doesn't hold water.
Here's why. There is a saying in our profession: each case sits on its bottom, so to speak. Two examples may help illustrate the point.
Example No 1: Two people suffer identical injuries in a collision--multiple fractures of both hands. One victim is a sales manager who works mainly at his desk. Despite his injuries, he's able to do his job. The other victim is a concert pianist for the local symphony and also gives private lessons. She is not only unable to perform in concerts and teach, but loses her job and substantial income.
Same injuries, but with different outcomes. Guess who has a more substantial claim? A rigid "formula" does not do justice to the pianist's claim versus the sales manager's.
Example No. 2: Again, two people suffer the same injuries in a collision--an odontoid fracture of the 2nd cervical vertebrae. The first victim was hit by a nice elderly lady coming home from church who slid thorugh a stop sign. The second was hit by a drunk driver who blew the stop sign at 68 MPH and blew a .225, over three times the legal limit of .08.
Same injuries, same amount of bills, same recovery. Guess who's claim is worth more? I can assure you that the claim against the drunk driver is potentially more valuable due to the egregious conduct of the drunk, which subjects him to possible punitive damages (money damages returned by a jury to punish a person for their reckless conduct).
There are numerous other examples of why simple formulas don't work. The only generalization is that each claim must be evaluated based upon its own unique facts and circumstances, and not on what Uncle Joe or the neighbor down the street received for their claim a few years ago.
Perhaps 15 or 20 years ago, this was not uncommon in our experience, although not an ironclad rule. However, times have changed. First, as jury verdicts started to trend downward in the mid-90's and beyond, this "rule" started to disappear. Second, many insurance companies invested millions for fancy computer modeling programs designed to ratchet down claim evaluations. Allstate, for example, invested multi-millions for a program known as "Colussus," which inputs "data" regarding an accident victim's injuries and bills, etc, and spits out an offer, frequently more pinched than a traditional "3 times" multiplier. Some people would characterize this as "garbage in, garbage out," but the point is that any rigid formula or equation for evaluating injury claims frequently doesn't hold water.
Here's why. There is a saying in our profession: each case sits on its bottom, so to speak. Two examples may help illustrate the point.
Example No 1: Two people suffer identical injuries in a collision--multiple fractures of both hands. One victim is a sales manager who works mainly at his desk. Despite his injuries, he's able to do his job. The other victim is a concert pianist for the local symphony and also gives private lessons. She is not only unable to perform in concerts and teach, but loses her job and substantial income.
Same injuries, but with different outcomes. Guess who has a more substantial claim? A rigid "formula" does not do justice to the pianist's claim versus the sales manager's.
Example No. 2: Again, two people suffer the same injuries in a collision--an odontoid fracture of the 2nd cervical vertebrae. The first victim was hit by a nice elderly lady coming home from church who slid thorugh a stop sign. The second was hit by a drunk driver who blew the stop sign at 68 MPH and blew a .225, over three times the legal limit of .08.
Same injuries, same amount of bills, same recovery. Guess who's claim is worth more? I can assure you that the claim against the drunk driver is potentially more valuable due to the egregious conduct of the drunk, which subjects him to possible punitive damages (money damages returned by a jury to punish a person for their reckless conduct).
There are numerous other examples of why simple formulas don't work. The only generalization is that each claim must be evaluated based upon its own unique facts and circumstances, and not on what Uncle Joe or the neighbor down the street received for their claim a few years ago.
Tuesday, January 5, 2010
New Website: How Does Your Hospital Rate?
Finally, Ohio has come out of the stone age. A new website launched by The Ohio Department Of Health will allow Ohioans to compare hospitals on a whole host of performance measures. For example, you can research hospitals' performance on a number of pateint safety measures like anesthesia complications, bed sores, and number of foreign objects left in patients during a procedure, just to name a few.
This is part of a nationwide movement to make a hospital's performance criteria transparent. Hospitals are required to submit data every six months or face a fine.
Of course, this data is dependent upon a hospital's willingness to keep accurate statistics and voluntarily report outcomes that might not necessarily paint them in a good light. But it is a vast improvement over data that Ohio consumers have had access to before--which is nothing.
Hospitals spend millions on PR ad campaigns touting the quality of care they provide. Now, at least, there is some criteria to measure against all the hype and feel good TV and radio commercials.
By the way, in 2008 The Cleveland Clinic left four foreign objects in patients during surgery. This doesn't make them a bad hospital--in fact, just the opposite is true. But it does show that even hospitals that provide "world class care" are capable of making preventable medical mistakes.
This is part of a nationwide movement to make a hospital's performance criteria transparent. Hospitals are required to submit data every six months or face a fine.
Of course, this data is dependent upon a hospital's willingness to keep accurate statistics and voluntarily report outcomes that might not necessarily paint them in a good light. But it is a vast improvement over data that Ohio consumers have had access to before--which is nothing.
Hospitals spend millions on PR ad campaigns touting the quality of care they provide. Now, at least, there is some criteria to measure against all the hype and feel good TV and radio commercials.
By the way, in 2008 The Cleveland Clinic left four foreign objects in patients during surgery. This doesn't make them a bad hospital--in fact, just the opposite is true. But it does show that even hospitals that provide "world class care" are capable of making preventable medical mistakes.
Monday, January 4, 2010
36,000 Reasons Why You Need As Much Uninsured Motorists' Coverage As You Can Afford
36,000 drunk drivers in Ohio. This figure does NOT represent the number of drunk drivers in Ohio in 2009. Here's the real jaw dropper: it represents the number of Ohioans with at least 5 DUI convictions since 1973!!! Recently, the Ohio Legislature passed a law to publish a public database of these drivers, only to realize that less than 1% of these drivers have made the list.
This figure is mind boggling to say the least. It illustrates, sadly, how serious of a societal problem drunk driving is. Now take this issue one step further and ask yourself: how many of these irresponsible people are carrying auto insurance to cover your injuries if you're hit by one of them? I can tell you from over twenty years of experience that the answer is: hardly any. Aren't they required by law to have insurance? Of course, but there are also laws against driving drunk as well and obviously these folks are ignoring it! Sadly, there are also ways around the mandatory insurance laws (like dropping coverage as soon as they purchase it).
The only way you can protect yourself and your family is to buy as much "uninsured motorists' coverage" as you can afford to buy. This coverage protects you if you get hit by a drunk driver that has either no coverage, or not enough to compensate you for your injuries. Our FREE book, "How To Buy Auto Insurance In Ohio," explains what you need to buy and how much you need to protect yourself. And you'd be suprised how cheap it is to really upgrade your policy.
Taking steps now to protect yourself will help you avoid financial disaster if you are on the unfortunate end of this situation. Given the staggering numbers of repeat offenders lurking on our roads, meeting up with a drunk driver in Ohio is more than just a remote possibility...
This figure is mind boggling to say the least. It illustrates, sadly, how serious of a societal problem drunk driving is. Now take this issue one step further and ask yourself: how many of these irresponsible people are carrying auto insurance to cover your injuries if you're hit by one of them? I can tell you from over twenty years of experience that the answer is: hardly any. Aren't they required by law to have insurance? Of course, but there are also laws against driving drunk as well and obviously these folks are ignoring it! Sadly, there are also ways around the mandatory insurance laws (like dropping coverage as soon as they purchase it).
The only way you can protect yourself and your family is to buy as much "uninsured motorists' coverage" as you can afford to buy. This coverage protects you if you get hit by a drunk driver that has either no coverage, or not enough to compensate you for your injuries. Our FREE book, "How To Buy Auto Insurance In Ohio," explains what you need to buy and how much you need to protect yourself. And you'd be suprised how cheap it is to really upgrade your policy.
Taking steps now to protect yourself will help you avoid financial disaster if you are on the unfortunate end of this situation. Given the staggering numbers of repeat offenders lurking on our roads, meeting up with a drunk driver in Ohio is more than just a remote possibility...
Sunday, January 3, 2010
Are Your Child's "Pranks Gone Bad" Covered By Your Insurance?
This case should serve as a warning to all you parents out there: your child's stupid pranks may subject you as parents to personal liability. In a recent Ohio case, some dimwitted high school students stole a target deer and spray painted it with profanities and the words "hit me." It gets worse. They decided to place the deer in the middle of a two lane rural road at the crest of a hill to see what would happen.
Sure enough, a car crested the hill, spotted the "deer," swerved to miss it...and ran the car into a nearby field. The driver and occupant sustained serious injuries. They sued the boys and their parents. The insurance company for the parents filed suit seeking a legal determination that the parents' homeowners policy did not provide liability coverage for the boys' actions or the parents because of an "intentional act" exclusion in the policy. Translated: if the boys as "insureds" under the policy were engaged in an "intentional act" due to their shenanigans with the deer, there was no coverage.
The court of appeals concluded that although the boys' actions in stealing and placing the deer in the roadway were intentional, "the disputed issue here is whether they also intended harm or injury to follow from their intentional act." Now a jury will decide this issue.
This was a close call and the Court's well reasoned decision was based in part on the language of the "intentional act" exclusion. If the policy were worded slightly differently, the Court may have concluded that the exclusion applied, meaning that the boys, and possibly their parents, would be personally liable to the injured occupants of the car.
So here's the take away from all this: remind your kids of this case and use it to educate them of the dangers of a juvenile prank gone bad. And let them know if they do something like this, you as parents could be personally liable for their stupidity.
Sure enough, a car crested the hill, spotted the "deer," swerved to miss it...and ran the car into a nearby field. The driver and occupant sustained serious injuries. They sued the boys and their parents. The insurance company for the parents filed suit seeking a legal determination that the parents' homeowners policy did not provide liability coverage for the boys' actions or the parents because of an "intentional act" exclusion in the policy. Translated: if the boys as "insureds" under the policy were engaged in an "intentional act" due to their shenanigans with the deer, there was no coverage.
The court of appeals concluded that although the boys' actions in stealing and placing the deer in the roadway were intentional, "the disputed issue here is whether they also intended harm or injury to follow from their intentional act." Now a jury will decide this issue.
This was a close call and the Court's well reasoned decision was based in part on the language of the "intentional act" exclusion. If the policy were worded slightly differently, the Court may have concluded that the exclusion applied, meaning that the boys, and possibly their parents, would be personally liable to the injured occupants of the car.
So here's the take away from all this: remind your kids of this case and use it to educate them of the dangers of a juvenile prank gone bad. And let them know if they do something like this, you as parents could be personally liable for their stupidity.
Thursday, December 17, 2009
Getting Proper Coverage If You Drive A Company Car
Here's the scenario: You drive a company car. You were told by someone in your company that the car has "full coverage." Months or years later, you are seriously injured in a crash by an uninsured motorist. You miss months or years or 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 work did not include uninsured/underinsured motorists coverage because your company declined the coverage(perfectly legal in Ohio and other states).
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?
How can you protect yourself in this situation? More than anything else, you need to have high levels of uninsured/underinsured motorists (UM/UIM) coverage--more than the standard $100,000 limits most people have (I explain why in my "How To Buy Car Insurance" book). This coverage protects YOU if you're injured by a driver with little or no liability insurance.
Armed with the knowledge in the book, there are basically two things you can do to find out whether your employer has purchased enough UM/UIM coverage 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 auto agent 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 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."
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.
The absolute WORST thing you can do is drive a car that has little to no UM/UIM coverage. In over twenty years of representing auto accident victims, I have seen, in broken record fashion, a repeating scenario: clients seriously injured by drivers with very little or no insurance. And if you do not have high levels of UM/UIM coverage, guess who is left holding the huge bag of bills and unreimbursed lost wages (not to mention nothing to show for your permanent injuries)?
That would be you--which makes you twice the victim.
You come to learn that your "full coverage" on the company car work did not include uninsured/underinsured motorists coverage because your company declined the coverage(perfectly legal in Ohio and other states).
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?
How can you protect yourself in this situation? More than anything else, you need to have high levels of uninsured/underinsured motorists (UM/UIM) coverage--more than the standard $100,000 limits most people have (I explain why in my "How To Buy Car Insurance" book). This coverage protects YOU if you're injured by a driver with little or no liability insurance.
Armed with the knowledge in the book, there are basically two things you can do to find out whether your employer has purchased enough UM/UIM coverage 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 auto agent 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 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."
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.
The absolute WORST thing you can do is drive a car that has little to no UM/UIM coverage. In over twenty years of representing auto accident victims, I have seen, in broken record fashion, a repeating scenario: clients seriously injured by drivers with very little or no insurance. And if you do not have high levels of UM/UIM coverage, guess who is left holding the huge bag of bills and unreimbursed lost wages (not to mention nothing to show for your permanent injuries)?
That would be you--which makes you twice the victim.
Thursday, December 10, 2009
Cellphone Industry Should Not Be Liable For Talking Drivers Who Cause Accidents
The issue of "distracted drivers" (and distracted pilots)continues to make news. Recently, an Oklahoma woman sued the wireless cellphone provider of a driver who killed her mother while talking on a cellphone.
This is a novel lawsuit. The claim? That the cellphone industry failed to provide appropriate warnings to users in light of the fact that it was foreseeable that users would talk while driving.
Negligent "failure to warn" cases can be legitimate when the product hazard is not obvious. For example, if a children's go kart can burst into flames if it is tipped on its side, a manufacturer should have a duty to place a conspicuous warning on the product and in the manual (an actual case we litigated a few years ago).
But the problem with the "cellphone lawsuit" is that, unlike the latent risk of something like a fire, it is common knowledge that it can be dangerous to talk or text while driving. The issue will therefore be: would an appropriate warning have prevented the driver from talking on his phone? Probably not.
Look for this case to be dismissed. And win or lose, I'll bet that cellphone providers will change their ways and start to include some specific warnings on the dangers of talking or texting while driving, which is probably not a bad thing anyway.
This is a novel lawsuit. The claim? That the cellphone industry failed to provide appropriate warnings to users in light of the fact that it was foreseeable that users would talk while driving.
Negligent "failure to warn" cases can be legitimate when the product hazard is not obvious. For example, if a children's go kart can burst into flames if it is tipped on its side, a manufacturer should have a duty to place a conspicuous warning on the product and in the manual (an actual case we litigated a few years ago).
But the problem with the "cellphone lawsuit" is that, unlike the latent risk of something like a fire, it is common knowledge that it can be dangerous to talk or text while driving. The issue will therefore be: would an appropriate warning have prevented the driver from talking on his phone? Probably not.
Look for this case to be dismissed. And win or lose, I'll bet that cellphone providers will change their ways and start to include some specific warnings on the dangers of talking or texting while driving, which is probably not a bad thing anyway.
Wednesday, December 9, 2009
Medical Near Misses--Where Do They Go?
When two planes nearly collide in mid air, it is newsworthy and we immediately hear about it. But if a medical "near miss" tree falls in the forest of the medical system, can you hear it? In other words, where does it go? Is it reported, acted upon, and corrected so it will never come to fruition and harm a patient?
An example will bring this issue to light. The other day, my wife visited the pharmacy at a "chain" store to pick up a medication for one of our sons. When she returned home, there were four bottles in the bag. One was our son's medication. The other three were a chemotherapy drug, and anti-nausea medication, and another medication I can't even remember. Obviously, we were given some poor cancer patient's chemo drugs. Ugh.
Aghast, my wife called the pharmacy. They apologized and asked her to return the meds, which she did. The pharmacist told her the other three meds "must have fallen in the bag." Yeah, right. So what happened after she returned the meds? Did the pharmacy fill out an incident report and voluntarily report it to the retailer? Was an investigation initiated to get to the root cause of this egregious error and establish or modify existing safety systems to make sure this error did not happen again? Or did the pharmacy simply breathe a sigh of relief that such a colossal screw up didn't result in serious harm to the patient and go about its business like nothing happened (the ostrich approach)?
We'll never know. But it makes me wonder that, if this happens again, and a pateint who is harmed brings a lawsuit, will lawyers for the pharmacy say with a straight face: "this pharmacy has a spotless record and nothing like this has never happened before."
Just so you know, Ohio is one of 18 states that have NO requirement to report "adverse events" or even things like hospital acquired infections. So if ACTUAL adverse events are not even required to be reported, what do you think happens to near misses?
So, it appears that your only remedy is to go over the head of who was responsible for the error and try to report it yourself. Otherwise, you may be standing on the tip of an iceberg and not even know it. And somewhere down the road it may just crash into someone else.
These mistakes will continue to occur unless and until the medical delivery system adopts a zero tolerance policy for errors similar to the airline industry.
An example will bring this issue to light. The other day, my wife visited the pharmacy at a "chain" store to pick up a medication for one of our sons. When she returned home, there were four bottles in the bag. One was our son's medication. The other three were a chemotherapy drug, and anti-nausea medication, and another medication I can't even remember. Obviously, we were given some poor cancer patient's chemo drugs. Ugh.
Aghast, my wife called the pharmacy. They apologized and asked her to return the meds, which she did. The pharmacist told her the other three meds "must have fallen in the bag." Yeah, right. So what happened after she returned the meds? Did the pharmacy fill out an incident report and voluntarily report it to the retailer? Was an investigation initiated to get to the root cause of this egregious error and establish or modify existing safety systems to make sure this error did not happen again? Or did the pharmacy simply breathe a sigh of relief that such a colossal screw up didn't result in serious harm to the patient and go about its business like nothing happened (the ostrich approach)?
We'll never know. But it makes me wonder that, if this happens again, and a pateint who is harmed brings a lawsuit, will lawyers for the pharmacy say with a straight face: "this pharmacy has a spotless record and nothing like this has never happened before."
Just so you know, Ohio is one of 18 states that have NO requirement to report "adverse events" or even things like hospital acquired infections. So if ACTUAL adverse events are not even required to be reported, what do you think happens to near misses?
So, it appears that your only remedy is to go over the head of who was responsible for the error and try to report it yourself. Otherwise, you may be standing on the tip of an iceberg and not even know it. And somewhere down the road it may just crash into someone else.
These mistakes will continue to occur unless and until the medical delivery system adopts a zero tolerance policy for errors similar to the airline industry.
Tuesday, December 8, 2009
Where Do We Turn When Trust Is Betrayed?
I found this recent article about a Gallup survey on trust that decries a general lack of societal trust. I'm not so sure this recent "study" is all that illuminating. But it got me thinking in general about the notion of trust in our society and how it intersects with the law.
By and large, we are a trusting society. The other day I was Christmas shopping and made some purchases at Dick's Sporting Goods. The checkout girl asked if I wanted to make a donation to St. Jude's Children Hospital, which I did. I had the fleeting thought: "How do I know if my donation will ever make it in full or in part to St. Jude's?" The answer was simple: you trust that it will.
Similarly, we trust that the fast food burger or sub we eat won't be tainted with e coli. We trust that the financial institutions that hold and invest our money won't defraud us. And we still place an inordinate amount of trust that our hospitals and doctors will safely treat us.
Simply, our society is built on trust. So where so we turn when that trust is shattered by any of these institutions? Where is the accountability for breaking our trust and harming us in some fashion? The only avenue of redemption we have is the legal system. It too is founded on trust and is by no means perfect either, but the only alternative is personal revenge and taking the law into our own hands, which is chaos, the antithesis of trust.
So I have to wonder why so many people are clammering for a legal "reform" movement that seeks to chop down our right of legal redress when that sacred trust is broken. What is even more perplexing is that this movement is moving forward on the heels of unprecedented Wall Street financial fraud that assaulted millions of hard working Americans' 401K's and other retirement plans, and practically brought our national economy to its knees.
Our legal system is the last line of defense when our sacred trust is fractured. Why we are seeking to dilute it at this crossroads in our nation's history defies logic, reason, and history.
By and large, we are a trusting society. The other day I was Christmas shopping and made some purchases at Dick's Sporting Goods. The checkout girl asked if I wanted to make a donation to St. Jude's Children Hospital, which I did. I had the fleeting thought: "How do I know if my donation will ever make it in full or in part to St. Jude's?" The answer was simple: you trust that it will.
Similarly, we trust that the fast food burger or sub we eat won't be tainted with e coli. We trust that the financial institutions that hold and invest our money won't defraud us. And we still place an inordinate amount of trust that our hospitals and doctors will safely treat us.
Simply, our society is built on trust. So where so we turn when that trust is shattered by any of these institutions? Where is the accountability for breaking our trust and harming us in some fashion? The only avenue of redemption we have is the legal system. It too is founded on trust and is by no means perfect either, but the only alternative is personal revenge and taking the law into our own hands, which is chaos, the antithesis of trust.
So I have to wonder why so many people are clammering for a legal "reform" movement that seeks to chop down our right of legal redress when that sacred trust is broken. What is even more perplexing is that this movement is moving forward on the heels of unprecedented Wall Street financial fraud that assaulted millions of hard working Americans' 401K's and other retirement plans, and practically brought our national economy to its knees.
Our legal system is the last line of defense when our sacred trust is fractured. Why we are seeking to dilute it at this crossroads in our nation's history defies logic, reason, and history.
Sunday, December 6, 2009
Hospital Boards More Concerned With Financial Issues Than Patient Safety?
I'm not a gambler. Never been to Vegas and it's not even on my bucket list, much less my radar screen. But I am willing to bet that, if you asked any living, breathing human being with half a brain: "What should a hospital's Number One priority be," the response would be universal: quality of care, and patient safety.
However, a recent survey of hospital boards reveals a shocking result: quality of care is taking a back seat to the business and financial aspects of running a hospital. Sixty six percent of the 722 Hospital Board Chairs surveyed listed quality of care as third on the list of priorities, which was not suprising to one former hospital CEO:
"Growth" and "business issues" more important than quality of care? Now think of all the fancy ads and brochures and websites hospitals pour millions into that tout--you guessed it--quality of care. Come to think of it, I've never seen any hospital ad campaigns that said: "Our number one priority is the business of growing our hospital."
This survey proves the obvious: hospitals are a business. Like any business, if they run it ethically and don't cut corners with patient care, they deserve to make a profit. And grow and prosper. But when committment to patient safety and quality of care is not "Job One" (as Ford Motors used to say), what follows is obvious: a pattern of preventable medical errors. If you think this is an isolated problem, I invite you to read a recent nationwide report that chronicles the scope of egregious medical errors in the U.S: Dead By Mistake.
These two recent news items surface at a critical time, as hospitals and their insurers are lobbying for national medical liability reforms that limit what injured patients can recover when legitimately harmed by preventable medical mistakes.
The lesson: there's a lot going on behind the curtain of fancy ad campaigns, both on the floors of hospitals, and apparently in the Board rooms as well. And some of it is not good.
However, a recent survey of hospital boards reveals a shocking result: quality of care is taking a back seat to the business and financial aspects of running a hospital. Sixty six percent of the 722 Hospital Board Chairs surveyed listed quality of care as third on the list of priorities, which was not suprising to one former hospital CEO:
The study results are not surprising, said James L. Reinertsen, MD, a health care consultant and former hospital CEO. He was not involved in the study.
"Boards tend to think that quality and safety are already pretty good or OK and that it's not an issue," Dr. Reinertsen said. "They're looking for leaders at the board level and executive leadership to work on financial issues, strategic issues, growth issues and the whole list of what I'd call 'business issues' within health care systems. They take the core business of delivering care kind of for granted."
"Growth" and "business issues" more important than quality of care? Now think of all the fancy ads and brochures and websites hospitals pour millions into that tout--you guessed it--quality of care. Come to think of it, I've never seen any hospital ad campaigns that said: "Our number one priority is the business of growing our hospital."
This survey proves the obvious: hospitals are a business. Like any business, if they run it ethically and don't cut corners with patient care, they deserve to make a profit. And grow and prosper. But when committment to patient safety and quality of care is not "Job One" (as Ford Motors used to say), what follows is obvious: a pattern of preventable medical errors. If you think this is an isolated problem, I invite you to read a recent nationwide report that chronicles the scope of egregious medical errors in the U.S: Dead By Mistake.
These two recent news items surface at a critical time, as hospitals and their insurers are lobbying for national medical liability reforms that limit what injured patients can recover when legitimately harmed by preventable medical mistakes.
The lesson: there's a lot going on behind the curtain of fancy ad campaigns, both on the floors of hospitals, and apparently in the Board rooms as well. And some of it is not good.
Wednesday, December 2, 2009
Ohio Should Pass A "Payee Notification" Law To Protect Consumers From Fraudulent And Unethical Attorneys
My most recent post discussed the rampant health care fraud that has gone on for years in the medical profession. Well, we in the legal profession have our own warts, and it's only fair to bring our own shortcomings to the light of day as well. Since 1985, Ohio has had in place a state agency known as "The Client's Security Fund." This organization is devoted to securing restitution for clients ripped off by unscrupulous attorneys. According to its 2009 Annual Report:
Some states have passed "payee notification" laws that notify clients by letter that their case has settled and that the settlement check has been mailed to their attorney. The purpose is obvious: to prevent an unethical attorney from forging the client's signature and absconding with the money.
Ohio should pass a similar law. Some of my colleagues do not agree with this law and consider it as offensive and an intrusion on their attorney-client relationship.
I couldn't disagree more. We as a profession should encourage any law that protects innocent clients from being ripped off by attorneys who have no business practicing law.
Until such a law is passed, the lesson here is: there are lots of attorneys that make all sorts of claims in advertisements. Some even solicit you after an accident. And some are shysters. So do your homework and carefully research the attorney or firm you're looking to hire. Ask for plenty of word of mouth references, and look to see who's providing you with EVIDENCE of their competence, beyond all the "puffery."
Since its inception in 1985, the fund has awarded more than $14 million to 1,795 former law clients (see Appendix C). All fund losses are attributable to less than 1 percent of Ohio’s more than 56,320 licensed attorneys, 42,164 of whom are engaged in the active practice of law. This report confirms that the verwhelming majority of Ohio lawyers observe high standards of integrity when entrusted with law client money or property. However, the dishonest acts of a few can affect the public’s image of and confidence in the legal profession as a whole. The Clients’ Security Fund seeks to restore public confidence in the legal profession by reimbursing law clients for losses sustained as a result of the dishonest conduct of their attorneys.
Some states have passed "payee notification" laws that notify clients by letter that their case has settled and that the settlement check has been mailed to their attorney. The purpose is obvious: to prevent an unethical attorney from forging the client's signature and absconding with the money.
Ohio should pass a similar law. Some of my colleagues do not agree with this law and consider it as offensive and an intrusion on their attorney-client relationship.
I couldn't disagree more. We as a profession should encourage any law that protects innocent clients from being ripped off by attorneys who have no business practicing law.
Until such a law is passed, the lesson here is: there are lots of attorneys that make all sorts of claims in advertisements. Some even solicit you after an accident. And some are shysters. So do your homework and carefully research the attorney or firm you're looking to hire. Ask for plenty of word of mouth references, and look to see who's providing you with EVIDENCE of their competence, beyond all the "puffery."
Monday, November 30, 2009
Why Does Health Care Fraud Play A Back Seat To Health Care "Reform?"
Justinian Lane has an insightful post about an issue often ignored in the national health care debate--that health care fraud costs us three times more than the national costs associated with medical malpractice. This caused me to do a bit of my own research, where I found The Department Of Health And Human Services And Department Of Justice Health Care Fraud And Abuse Conrtol Report For The Fiscal Year 2008 (I think the title of this report needs to be a bit longer...) Some mind blowing stats of the Report...
Closer to home, an Ohio physician alone was responsible for a fraudulent billing scheme totalling $1.8 million:
These staggering figures include only the shysters who got caught. If we're talking billions of dollars recovered, it probably represents the tip of the iceberg as to the amount of actual fraud being perpetrated on U.S. taxpayers.
Yet, despite this rampant, continuing fraud, all some politicians want to talk about is limiting patients' right to sue even in cases of legitimate malpractice. Fraud apparently trumps fairness in this goofy debate...
During FY 2008, the Federal Government won or negotiated approximately $1 billion in judgments and settlements2, and it attained additional administrative impositions in health care fraud cases and proceedings. The Medicare Trust Fund received transfers of approximately $1.94 billion during this period as a result of these efforts, as well as those of preceding years, in addition to over $344 million in Federal Medicaid money similarly transferred separately to the Treasury as a result of these efforts. The HCFAC account has returned over $13.1 billion to the Medicare Trust Fund since the inception of the Program in 1997.
Closer to home, an Ohio physician alone was responsible for a fraudulent billing scheme totalling $1.8 million:
An Ohio physician was sentenced to 37 months in prison after pleading guilty to conspiring to engage in a scheme to defraud Medicare and other health care benefit programs by performing medically unnecessary nuclear stress tests that involved injecting nuclear medicine into patients. During the conspiracy, the physician received at least $1.8 million in reimbursement for the medically unnecessary tests. As part of his guilty plea, the physician agreed to give up his medical license, to forfeit more than $1.8 million, and to be permanently excluded from participation in all federal health care programs.
These staggering figures include only the shysters who got caught. If we're talking billions of dollars recovered, it probably represents the tip of the iceberg as to the amount of actual fraud being perpetrated on U.S. taxpayers.
Yet, despite this rampant, continuing fraud, all some politicians want to talk about is limiting patients' right to sue even in cases of legitimate malpractice. Fraud apparently trumps fairness in this goofy debate...
Wednesday, November 25, 2009
Corporate Lawsuit Hypocrites
Frequently I have railed on the Chamber Of Commerce, corporate America, and professional groups who have cried and moaned for years for legal or tort "reforms" making it harder for injured and ripped off individuals to sue. These groups all have one thing in common: they want to chop down your right to sue, but wish to retain THEIR right to sue you or another business without any limits or strings attached. In other words, they're a bunch of hypocrites.
Well, Joanne Doroshow at The Center For Justice And Democracy nailed this issue in a recent post. It's my thoughts exactly (only better articulated). Enjoy the gentle breeze of the truth entering the room as you read it.
A healthy and peaceful Thanksgiving to all...
Well, Joanne Doroshow at The Center For Justice And Democracy nailed this issue in a recent post. It's my thoughts exactly (only better articulated). Enjoy the gentle breeze of the truth entering the room as you read it.
A healthy and peaceful Thanksgiving to all...
Wednesday, November 18, 2009
What If Your Doctor Or Chiropractor Won't Bill Your Health Insurance Company After An Accident?
If you've been injured in a collision or for any other reason (a slip and fall in a store, for example), your medical provider may just tell you: "there's no need to bill your health insurance company." This provider may insist on having you sign a paper stating that you must pay their bills out of your settlement if you settle your case in the future.
If you live in Ohio and have health insurance, this practice may be illegal. Ohio law says that:
What this means is that, if you have health insurance, your medical provider must bill your health insurance company if that provider is a member of your health insurance network or plan. The reasoning is simple: if medical providers agree to be listed as members of a health insurance plan, they must abide by the rules of the health plan. In exchange for being sent or accepting patients, providers agree to be paid what is "reasonable and customary" for their billed services.
So why would a medical provider seek to skirt the agreement and Ohio law on this issue? Example: if your bill for your accident related injuries is $2000, the "reasonable and customary" payment might be $1,300. By trying to get you to bypass submitting the bill to your health insurance company, the provider is attempting to be paid dollar for dollar for his or her bill--$2,000 in the example above.
If you come across this practice, you need to report it to your health insurance company immediately. Many times I have had to write a polite letter to providers reminding them of their obligation under Ohio law to bill health insurance.
And here's why it's beneficial in almost all instances to submit your accident or collision related bills to your health insurance company.
If you live in Ohio and have health insurance, this practice may be illegal. Ohio law says that:
every provider or health care facility that contracts with a health insuring corporation to provide health care services to the health insuring corporation's enrollees or subscribers shall seek compensation for covered services solely from the health insuring corporation and not, under any circumstances, from the enrollees or subscribers, except for approved copayments and deductibles.
What this means is that, if you have health insurance, your medical provider must bill your health insurance company if that provider is a member of your health insurance network or plan. The reasoning is simple: if medical providers agree to be listed as members of a health insurance plan, they must abide by the rules of the health plan. In exchange for being sent or accepting patients, providers agree to be paid what is "reasonable and customary" for their billed services.
So why would a medical provider seek to skirt the agreement and Ohio law on this issue? Example: if your bill for your accident related injuries is $2000, the "reasonable and customary" payment might be $1,300. By trying to get you to bypass submitting the bill to your health insurance company, the provider is attempting to be paid dollar for dollar for his or her bill--$2,000 in the example above.
If you come across this practice, you need to report it to your health insurance company immediately. Many times I have had to write a polite letter to providers reminding them of their obligation under Ohio law to bill health insurance.
And here's why it's beneficial in almost all instances to submit your accident or collision related bills to your health insurance company.
Saturday, November 14, 2009
More Insurance Company Surveillance Tactics
Recently I wrote about how insurance companies often engage in shady surveillance tactics. A recent story shows what lengths they'll stoop to, and the stupid arguments they'll make to deny disability insurance benefits.
The claimant, Rocky Whitten, broke his neck. Three of his doctors determined that he was permanently disabled. Despite this, The Hartford hired a private investigator to follow and videotape him. The surveillance did not catch him digging ditches or playing football. The videotape captured him...eating chips and salsa in a restaurant. From this "damaging" video, The Hartford had its own doctor conclude that because Whitten could use his hands to eat chips, he was capable of sedentary employment, and denied his entitlement to disability benefits he paid for under the policy.
Not suprisingly, Hartford reversed its position when ABC News broke the story and exposed Hartford's sleazy tactics and downright stupid legal position.
This story shows what efforts insurance companies will go to when it comes time to pay benefits under disability insurance policies, even in cases where claimants are legitimately and seriously injured. Companies like The Hartford figure that they have nothing to lose by using desparation surveillance tactics.
Although the article didn't say exactly when The Hartford decided to secretly video its own insured, typically insurance companies use surveillance after they take the deposition of their own insured. They will ask insureds at their deposition detailed questions as to what they can no longer do, and then hire the investigator to follow insureds in an attempt to "catch" them doing activites inconsistent with their deposition testimony.
So, if you have an injury or disability claim, the most likely time you will be followed or videoed is about two to four weeks after your deposition is taken. Just so you know....
The claimant, Rocky Whitten, broke his neck. Three of his doctors determined that he was permanently disabled. Despite this, The Hartford hired a private investigator to follow and videotape him. The surveillance did not catch him digging ditches or playing football. The videotape captured him...eating chips and salsa in a restaurant. From this "damaging" video, The Hartford had its own doctor conclude that because Whitten could use his hands to eat chips, he was capable of sedentary employment, and denied his entitlement to disability benefits he paid for under the policy.
Not suprisingly, Hartford reversed its position when ABC News broke the story and exposed Hartford's sleazy tactics and downright stupid legal position.
This story shows what efforts insurance companies will go to when it comes time to pay benefits under disability insurance policies, even in cases where claimants are legitimately and seriously injured. Companies like The Hartford figure that they have nothing to lose by using desparation surveillance tactics.
Although the article didn't say exactly when The Hartford decided to secretly video its own insured, typically insurance companies use surveillance after they take the deposition of their own insured. They will ask insureds at their deposition detailed questions as to what they can no longer do, and then hire the investigator to follow insureds in an attempt to "catch" them doing activites inconsistent with their deposition testimony.
So, if you have an injury or disability claim, the most likely time you will be followed or videoed is about two to four weeks after your deposition is taken. Just so you know....
Wednesday, November 11, 2009
Trial Tips--Constructing A Solid Final Argument
Final argument is what every trial attorney lives for. It's the equivalent of being on the mound with a 3-2 count in the 9th inning, or launching the final shot at the buzzer. It's the weaving together of a patchwork of evidence that hopefully makes sense to the jury at the apex of the summit of the trial.
We all look for the necessary binding or fastening materials to tie everything together. A quote, a parable, a metaphor or analogy--these are the binders we use. These are our stock in trade, and every good attorney scavenges for the right one to bring home to the jury. I collect two things. One is fishing lures and equipment, since I am a certified fishaholic. The other thing I collect is quotes, phrases, and other words of wisdom. I have a weathered notebook that I've kept in my desk for years. Every time I read a quote or phrase or story that is appealing, I copy it into my trusty journal for use in a legal brief or at trial.
A great source of inspiration for me is music lyrics. In my mind, there is no greater lyricist than Neil Young. For example, in a personal injury case involving injury to or loss of a child, "I Am A Child" offers this insightful thought:
I am a child.
I last awhile.
You can't conceive of the pleasure in my smile.
Message: you're only a child for so long. No child should have to suffer the loss of innocence or have it broken or shortened due to the carelessness of others.
I've also had cases where my clients were younger and not earning a ton of money at the time they were injured. Perhaps they were just young and immature and just getting by or not realizing their full potential. In those cases, the defense often argues, sometimes very subtly, that the serious injury to that person was no big deal since they weren't exactly setting the world on fire when they were injured. This argument has always been offensive to me, since so many of us are late bloomers, and it doesn't mean we won't someday "figure it out" and reach our potential. Neil's "Comes A Time" beautifully speaks to this issue:
Come's a time, when you're drifting.
Come's a time when you settle down.
Come's a life, feelings lifting.
Pick that baby right up off the ground.
This old world keeps spinning round.
It's a wonder tall trees ain't layin down.
There comes a time.
I think those lyrics put the idea of growing up and realizing potential into proper perspective. So here's a small tribute to my man Neil and a tip of my cap as an inspiration to me and to helping my clients. "Long may you run," Neil (another great song by him), and Happy Birthday (born Nov 12, 1945). Long may we all run as we figure out this thing called life.
Friday, November 6, 2009
Loser Pays Legislation: The Only "Winners" Are Insurance Companies
Recently, some politicians have attempted to insert a national "loser pays" rule into health care reform legislation. The "Pop Tort" website nailed the idiocy of this legislation in a recent post entitled "Loser Pays Is A Medical Malpractice Loser." In addition to the excellent points made by the post (that a "loss" in court does not mean that the case was frivolous), there is one other fatal flaw of this legislation that makes it a horrible idea: just how do you define just who is a lawsuit "loser?"
Example. A surgeon leaves a large towel or sponge or clamp inside your body after abdominal surgery. After months or years of pain, swelling, fever, and after you were misdiagnosed with every wrong condition under the sun (or worse yet told it is "all in your head"), a prudent physician finally gets a CT scan, compares it to your surgical CT, and figures out that you have a huge foreign object inside you. After hours of surgery to remove the object, which has now adhered to your insides, you are left with permenant damage to your internal organs.
You obtain the medical records. Not surprisingly, all the sponge and instrument counts in the surgical records were correct. So who dropped the ball--the hospital surgical team or the surgeon? You sue both the hospital and the surgeon. Each denies negligence and each blames the other for the colossal screw up.
You go to trial, and the jury finds that the surgeon was negligent but the hospital was not, and returns a modest verdict of $350,000. Your case was a "winner" against the surgeon but a "loser" versus the hospital. Under "loser pays" legislation, the hospital moves after the verdict to order you to pay them $150,000 in legal fees and expenses for defending the claim. If you think this figure is bloated and unrealistic, think again--hospital attorneys bill by the hour and it is not uncommon for them to charge $2-400 per hour and hire expensive experts who charge $500 per hour for a case that lasts 2 years, so you do the math...
So you won the case, but well over 50% of your recovery goes right out of your pocket to lawyers you did not hire and who actually fought against you! How does "loser pays" legislation sound now? Who does this law benefit? Not you. But the hospitals' malpractice insurance companies will make out like the bandits they are.
No wonder insurane companies are pushing for this law. For over two hundred years, we've had the rule in the U.S. that each side pays its own attorneys fees, unless the lawsuit was considered frivolous. Now, the same politicians who rail against government intervention are attempting to "federalize" medical malpractice law with a law that essentially shifts all the risk to you as the injured patient.
The end result will create a HUGE chilling effect on LEGITIMATE malpractice cases, and will cause many injured patients to simply give up over fear of shouldering a monstrous legal bill if they lose. And that's the irony of this legislation--they can leave a towel in you, and you might just be forced to "throw in the towel" against them.
Example. A surgeon leaves a large towel or sponge or clamp inside your body after abdominal surgery. After months or years of pain, swelling, fever, and after you were misdiagnosed with every wrong condition under the sun (or worse yet told it is "all in your head"), a prudent physician finally gets a CT scan, compares it to your surgical CT, and figures out that you have a huge foreign object inside you. After hours of surgery to remove the object, which has now adhered to your insides, you are left with permenant damage to your internal organs.
You obtain the medical records. Not surprisingly, all the sponge and instrument counts in the surgical records were correct. So who dropped the ball--the hospital surgical team or the surgeon? You sue both the hospital and the surgeon. Each denies negligence and each blames the other for the colossal screw up.
You go to trial, and the jury finds that the surgeon was negligent but the hospital was not, and returns a modest verdict of $350,000. Your case was a "winner" against the surgeon but a "loser" versus the hospital. Under "loser pays" legislation, the hospital moves after the verdict to order you to pay them $150,000 in legal fees and expenses for defending the claim. If you think this figure is bloated and unrealistic, think again--hospital attorneys bill by the hour and it is not uncommon for them to charge $2-400 per hour and hire expensive experts who charge $500 per hour for a case that lasts 2 years, so you do the math...
So you won the case, but well over 50% of your recovery goes right out of your pocket to lawyers you did not hire and who actually fought against you! How does "loser pays" legislation sound now? Who does this law benefit? Not you. But the hospitals' malpractice insurance companies will make out like the bandits they are.
No wonder insurane companies are pushing for this law. For over two hundred years, we've had the rule in the U.S. that each side pays its own attorneys fees, unless the lawsuit was considered frivolous. Now, the same politicians who rail against government intervention are attempting to "federalize" medical malpractice law with a law that essentially shifts all the risk to you as the injured patient.
The end result will create a HUGE chilling effect on LEGITIMATE malpractice cases, and will cause many injured patients to simply give up over fear of shouldering a monstrous legal bill if they lose. And that's the irony of this legislation--they can leave a towel in you, and you might just be forced to "throw in the towel" against them.
Thursday, November 5, 2009
What Can You Expect If Your Personal Injury Case Goes To Mediation
Mediation as a method of resolving lawsuits has become as popular as LeBron James at a Nike shoe giveaway. In McDonald's like fashion, mediators and mediation programs are popping up all over the place. Judges are ordering parties to mediation earlier than ever after a lawsuit has been filed, and it is not umcommon for parties to a lawsuit to go through multiple mediations in an effort to avoid going to trial.
So what goes on at a mediation? Usually the parties and their attorneys meet in a room with a mediator. There may be some discussion of each party's view of the case, and, depending upon the case, there may be a presentation of sorts (like a PowerPoint or something similar). Then, the parties separate while the mediator talks to both sides separately and acts as a go between in trying to forge a compromise.
Mediation, generally speaking, is a useful alternate dispute resolution tool in settling cases. Some cases really need to be resolved for whatever reason. Sometimes one party to a lawsuit is being entirely unrealistic, and needs to hear about some of the consequences of being unreasonable in his or her position. What's more, sometimes the parties simply have a good faith dispute as to the value of an injury claim, and each are able to "give in" and reach a settlement, which avoids the uncertainty of trial. But mediation is not the "magic pill" as it has been portrayed by some, and definitely has its limitations.
First, some cases just need to be tried to a verdict. I'm tired of hearing from some legal experts, and a small minority of judges for that matter, who say that a trial a "failure" because the parties couldn't settle their differences and had to have a trial. That's like a parent saying to his kid: "I realize the bully has been pummeling you daily, but why haven't you been able to settle your differences with him?"
Sometimes you can't "compromise" with a bully. Occasionally the bully needs to be taken to the woodshed and taught a lesson. This is not a "failure;" it's called justice (It worked for me in junior high anyway in a baseball dugout after I got shelled on the mound as a pitcher and discovered that the bully had filled my high tops with dirt, the last straw in a long line of abuses that ended that day in that dugout...)
Second, it is amazing to me how insulting some insurance companies' initial offers at mediation can be. Going in to any mediation, I tell my clients two things: (1) be prepared to be insulted with the initial offer(s); and (2) be prepared to walk out with civility and politeness if and when it becomes clear that the insurance company is low balling or being unrealistic.
So what goes on at a mediation? Usually the parties and their attorneys meet in a room with a mediator. There may be some discussion of each party's view of the case, and, depending upon the case, there may be a presentation of sorts (like a PowerPoint or something similar). Then, the parties separate while the mediator talks to both sides separately and acts as a go between in trying to forge a compromise.
Mediation, generally speaking, is a useful alternate dispute resolution tool in settling cases. Some cases really need to be resolved for whatever reason. Sometimes one party to a lawsuit is being entirely unrealistic, and needs to hear about some of the consequences of being unreasonable in his or her position. What's more, sometimes the parties simply have a good faith dispute as to the value of an injury claim, and each are able to "give in" and reach a settlement, which avoids the uncertainty of trial. But mediation is not the "magic pill" as it has been portrayed by some, and definitely has its limitations.
First, some cases just need to be tried to a verdict. I'm tired of hearing from some legal experts, and a small minority of judges for that matter, who say that a trial a "failure" because the parties couldn't settle their differences and had to have a trial. That's like a parent saying to his kid: "I realize the bully has been pummeling you daily, but why haven't you been able to settle your differences with him?"
Sometimes you can't "compromise" with a bully. Occasionally the bully needs to be taken to the woodshed and taught a lesson. This is not a "failure;" it's called justice (It worked for me in junior high anyway in a baseball dugout after I got shelled on the mound as a pitcher and discovered that the bully had filled my high tops with dirt, the last straw in a long line of abuses that ended that day in that dugout...)
Second, it is amazing to me how insulting some insurance companies' initial offers at mediation can be. Going in to any mediation, I tell my clients two things: (1) be prepared to be insulted with the initial offer(s); and (2) be prepared to walk out with civility and politeness if and when it becomes clear that the insurance company is low balling or being unrealistic.
Wednesday, November 4, 2009
"Someone Was Injured On My Property"-- Are You Liable?
This is a frequently asked question. The common misconception is that you as a homeowner or landowner are automatically liable if another person is injured on your property. In fact, I've heard many people say: "If someone is injured on your property, you're liable for it." This, as a general rule, is not true. You as an Ohio homeowner or landowner are liable only if you are negligent.
Some examples might illustrate the point. If a guest or relative falls down your basement steps due to his or her inattentiveness, you are not liable--you did nothing wrong. Similarly, if a neighbor trips on your sidewalk, or on a log in plain view in your backyard, again, you would not be liable.
Here is the general rule in Ohio for your duties as a landowner: you owe a duty to warn of, or make safe, any hazard that you know of or should know of if you had exercised due diligence. Now let's take that standard and apply it to an example where a landowner would be negligent and therefore liable for injuries to a guest or invitee (a person on your land with permission).
Let's say you know of a rather large hole in your backyard that is hidden by overgrown grass. You know it's there because you cut the grass. But, over the course of time, you don't fill the hole, and you don't mark it as a hole or warn anyone of the hole. You or your kids invite some friends over and a guest promptly breaks his ankle while engaging in some backyard activity.
In this instance, your failure to warn of, or make safe, a hazard like a hidden hole would probably render you negligent under Ohio premises liability law. What is important to remember, however, is that every case is different, and there are no hard and fast rules here. Change a fact or two in any one of those examples and it could mean the difference between being liable for negligence or not. The key for any landowner is to use common sense and take reasonable efforts to maintain the safety of your property.
Some examples might illustrate the point. If a guest or relative falls down your basement steps due to his or her inattentiveness, you are not liable--you did nothing wrong. Similarly, if a neighbor trips on your sidewalk, or on a log in plain view in your backyard, again, you would not be liable.
Here is the general rule in Ohio for your duties as a landowner: you owe a duty to warn of, or make safe, any hazard that you know of or should know of if you had exercised due diligence. Now let's take that standard and apply it to an example where a landowner would be negligent and therefore liable for injuries to a guest or invitee (a person on your land with permission).
Let's say you know of a rather large hole in your backyard that is hidden by overgrown grass. You know it's there because you cut the grass. But, over the course of time, you don't fill the hole, and you don't mark it as a hole or warn anyone of the hole. You or your kids invite some friends over and a guest promptly breaks his ankle while engaging in some backyard activity.
In this instance, your failure to warn of, or make safe, a hazard like a hidden hole would probably render you negligent under Ohio premises liability law. What is important to remember, however, is that every case is different, and there are no hard and fast rules here. Change a fact or two in any one of those examples and it could mean the difference between being liable for negligence or not. The key for any landowner is to use common sense and take reasonable efforts to maintain the safety of your property.
Tuesday, November 3, 2009
Can A Personal Injury Case Settle During Trial?
The short answer: Yes. Over the course of 21 years of trying cases to juries, I have settled a handful of cases during trial. One was a trucking case where a driver failed to set the brakes at a loading dock and injured a forklift or "tow motor" operator who was injured when the truck drifted while the tow motor operator was loading it. Another was a "premises liability" case where a tradesman fell through a set of temporary steps defectively built on a residential housing worksite. And yet another was a medical malpractice trial that had lasted two weeks.
In each case, the defendants initially denied responsibility for what happened. But once the trial gets underway, sometimes a key witness can give powerful testimony, or an opposing witness can perform poorly, or say something downright stupid. Sometimes opposing counsel will overstep his or her bounds and needlessly attack a witness or an expert. And sometimes the judge's ruling admitting or excluding a key piece of evidence will affect one side's ability to present their case. Any one of these things can cause a party to the lawsuit to re-elavuate and possibly change its negotiating position and make a new offer during trial and before the jury renders its decision.
To borrow a sports analogy, a case can gather momentum like a football team driving down the field into the red zone, and this is often the impetus for resolving the case during trial. One thing is certain about a settlement during trial: it produces finality, and eliminates the risk associated with a jury verdict, where there is only one winner and one loser.
In each case, the defendants initially denied responsibility for what happened. But once the trial gets underway, sometimes a key witness can give powerful testimony, or an opposing witness can perform poorly, or say something downright stupid. Sometimes opposing counsel will overstep his or her bounds and needlessly attack a witness or an expert. And sometimes the judge's ruling admitting or excluding a key piece of evidence will affect one side's ability to present their case. Any one of these things can cause a party to the lawsuit to re-elavuate and possibly change its negotiating position and make a new offer during trial and before the jury renders its decision.
To borrow a sports analogy, a case can gather momentum like a football team driving down the field into the red zone, and this is often the impetus for resolving the case during trial. One thing is certain about a settlement during trial: it produces finality, and eliminates the risk associated with a jury verdict, where there is only one winner and one loser.
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