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

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

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

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

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

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

PROVING IT

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATISTICAL BREAKDOWN OF CIVIL CASES IN OHIO COURTS

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

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

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


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


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

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

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

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

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


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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the "incredibly stupid idea" department...

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

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

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

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

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

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

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

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

Why Preparing Clients For Deposition Is Like Making Pancakes

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

Happy Holidays!

Employers' Liability For Drunk Employees Who Cause Accidents

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

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

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

A Michigan jury will decide this issue this week.

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

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

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

Trucking Company Blames Accident Victim--And Loses

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

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

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

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

Why Does Wrong Site Surgery Continue To Happen?

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

As attorney Eric Turkewitz aptly pointed out:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How pervasive is the vexing problem of wrong site surgery?

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

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

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

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

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

The Real Effects Of Medical "Tort Reform"

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

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

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

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

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

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

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

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

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

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

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

Keep up the good work, Justinian...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. AVOID THE "REFERRAL MILLS."

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

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

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

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

3. KEEP ALL OF YOUR APPOINTMENTS

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

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

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

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

5. BE HONEST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How To Protect Yourself Against Dishonest Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Morphine Overdose Medication Errors In Hospitals--An Alarming Trend

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

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

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

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

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

.

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

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

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

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

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

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

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

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

Hospital Replacing Certain Employees....With ROBOTS

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

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

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

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

Stupid Video Game Addiction Lawsuit Needs To Go Away

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

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

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

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

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

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

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

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

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

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