Sunday, April 26, 2009

Oprah's Aha Moment--Corporate Frivolous Lawsuits

Insurance behometh Mutual of Omaha has sued Oprah, claiming she misappropriated the phrase "aha moment" that Mutual has used in its recent commercials. This is an example of one of the most stupid frivolous corporate lawsuits I've seen lately. This is exactly the kind of lawsuit that clogs our legal system and delays legitimate lawsuits.

C'mon folks. Can't something as trivial as Oprah occasionally using a commonly used phrase be worked out short of a federal lawsuit? Perhaps an exchange of a few letters, or their people could "do lunch" over a nice, overpriced green salad (with lots of fruits and nuts with low fat dressing on the side) and solve this pressing legal issue (insert sarcasm here). The hypocrisy of this lawsuit is that business groups and insurance companies love to thrash personal injury lawsuits like the McDonald's "hot coffee" case as the poster child for frivolous lawsuits and why we need legal reform. Funny, but I never hear these same groups rail on stupid CORPORATE frivolous lawsuits.

Here's my "aha moment." Hey Mutual of Omaha, stop whining about Oprah using your little phrase--in fact, her occasionally using it might just be good publicity for you. I liked you a lot better when you were sponsoring "Wild Kingdom." At least the segues were funny ("Jim has stuck his head into the lions' cage. Jim needs protection...Mutual of Omaha offers protection with its life insurance policies..."). There's nothing funny about this dud of a lawsuit.

Saturday, April 11, 2009

Physicians Fighting For Rigid Standards In The Courtroom...And Railing Against Them In The Hospital Room

Physicians groups and their insurance companies spent tens of millions in Ohio a few years ago on a PR campaign to push for lawsuit "reform." The result: a rigid, one size fits all cap that limits compensation for your physical pain to as little as $250,000 (a more "generous" $500,000 cap applies if you lost a limb or are paralyzed due to medical malpractice). The reasoning? We needed "uniformity" and "predictability" in jury verdicts, and this would help to make the system more stable for insurers and medical providers.

Trial lawyers responded that these rigid rules strip away a jury's ability to make a community decision as to how a preventable medical mistake uniquely affects an injured patient on an individual basis. Each case, each person is unique, and so is their pain and inability to enjoy life's activities. A jury's job, we said, is to examine how the malpractice affected that particular patient, what the malpractice took away, what the patient fought to get back, throw it all in the mix, and render a community decision. Well, we lost that fight and the medical community won and now we have one size fits all, rigid limits when it comes to compensating patients in Ohio medical malpractice lawsuits.

That's why I found this Wall Street Journal piece fascinating. Apparently there is a movement in Congress to impose new "quality of care" rules on physicians. The premise of this recent movement is that

Health-policy planners define quality as clinical practice that conforms to consensus guidelines written by experts. The guidelines present specific metrics for physicians to meet, thus "quality metrics." Since 2003, the federal government has piloted Medicare projects at more than 260 hospitals to reward physicians and institutions that meet quality metrics. The program is called "pay-for-performance." Many private insurers are following suit with similar incentive programs.

What's more, "physicians who fail to comply with quality guidelines from certain state-based insurers are publicly discredited and their patients required to pay up to three times as much out of pocket to see them." Suddenly, physicians are not too happy with rigid rules when applied to the hospital rooms or the operative suite:

rigid and punitive rules to broadly standardize care for all patients often break down. Human beings are not uniform in their biology. A disease with many effects on multiple organs, like diabetes, acts differently in different people. Medicine is an imperfect science, and its study is also imperfect. Information evolves and changes. Rather than rigidity, flexibility is appropriate in applying evidence from clinical trials. To that end, a good doctor exercises sound clinical judgment by consulting expert guidelines and assessing ongoing research, but then decides what is quality care for the individual patient. And what is best sometimes deviates from the norms.

I think that physicians are mostly right on this issue--to a point. Although there are many accepted practices and protocols for treating and diagnosing conditions, there should be room for flexibility and taking into account the uniqueness of an individual patient's profile or medical history that may not be the "norm."

So why are rigid and uniform rules wonderful in the courtroom when it comes to limiting a patient's recovery in a malpractice lawsuit, and suddenly horrible when it limits doctors' payments as a performance criteria?

A tad hypocritical? Me thinks so.

Thursday, April 2, 2009

Ohio School Immunity--No Liability If Your Child Is Sexually Assaulted On A School Bus

There is NO liability in Ohio against a school district if your child is molested, raped, or assaulted on a school bus. It doesn't matter if these school children can't even protect themselves because they're six years old, or are special needs students with a physical or mental disability. This comes courtesy of a March, 2009 Ohio Supreme Court case known as Doe v. Marlington School District.

According to the Court, a school district's liability for the negligent "operation" of a school bus does not include supervision and oversight of the students on the bus. So here's the bottom line: school districts have blanket immunity no matter what happens on the bus, as long as the driver doesn't negligently crash it. If a school child was repeatedly molested or assaulted, and bus driver knew about it, no liability. If parents complained about an injury or assault to their child and the school district did nothing and it happened again, no liability.

So let's review the shameful breadth of the wall of immunity in Ohio for school districts. If your child is raped or molested in the restroom, locker room, gym, bus, or on a field trip, there is immunity--even if the offending school employee was a convicted child molester, as I wrote about here. And if the school district punishes children by repeatedly sending them to a "seclusion room" where they later hang themselves, no liability under Ohio law, as I wrote about here.

This is what our Ohio Legislature has done for the protection of Ohio school children. The Ohio Supreme Court has upheld these laws on more than one occasion. It's disappointing to say the least a civilized society that is supposed to be based upon principles of legal responsibility and accountability for your actions. You've heard of the axiom "let the buyer beware?" For Ohio school children, it's becoming "let the youngsters beware."

Nicodemo and Wilson website: click here

Wednesday, April 1, 2009

A Thank You To A Certain Attorney TV Advertiser

Recently I settled a case for a client who was injured in a fall at a hospital while recuperating from surgery. After reviewing the extensive medical records, it was my opinion that, due to my client's particular medical history, and some orders that did not appear to be followed, the fall and the injuries sustained were preventable by hospital staff. I filed a lawsuit, took some depositions of the staff involved in his care, and hired a nursing expert to review what happened to cause the fall and determine whether it could have been prevented--all the things that are necessary to pursue a case like this.

We got the case settled for a fair amount shortly before trial. At my initial meeting with the client, he told me that he called two different attorneys/ firms that heavily advertise on TV before he came to see me. The one attorney flatly rejected his case over the phone and the other firm never returned his call. I can't speak for the firm that didn't return the call (maybe someone just didn't get the message on a busy day--it happens to all of us), but I suspect I know why the other attorney rejected his case: it required work and effort.

Hospital fall cases can be tricky. Many falls are preventable and should never happen while others can occur if staff does everything by the book. Each case is different and unique and needs to be evaluated on its own merits. In other words, this case was not a "slam dunk." It had to be reviewed, a lawsuit was required, and a lot of legwork was necessary. I suspect that this attorney recognized all this and decided to pass on the case.

I don't mean to knock all attorneys or firms who advertise on TV. Some firms who advertise have great reputations and produce respectable ads (Canton attorney Allen Schulman comes to mind), while other ads are just plain tastless and embarrasing.

It just goes to show how persons in need of a competent injury attorney or firm really have to cut through the advertising circus and do their homework. In the meantime, I'd like to thank "Mr. TV Advertiser Who Shall Remain Nameless" for rejecting the case. A fair result was reached, and we made a new friend. I guess there's still room for us smaller, non-"high volume" firms. Flying under the radar in a sea of "we'll get huge bucks for you" ads is not such a bad thing...