Recently, The U.S. Supreme Court ruled in a 8-1 decision that a strip search of a 13 year old girl at an Arizona middle school was an unconstitutional violation of her Fourth Amendment right against unreasonable search and seizure. According to press accounts and the official opinion, the school suspected that the girl was in possession of prescription strength ibuprofen, so they searched her person and her backpack. When the initial search revealed no pills, they strip searched her. The strip search revealed--again--no pills.
What is troubling about this ruling is that the Court also ruled that school officials who ordered/conducted the illegal search were immune from liability unless they "blatently violated clearly established law." So let me get this straight: a minor's Constitutional rights are violated, yet there is no accountability or liability for violating them. Isn't our Constitution and Bill Of Rights "clearly established law?" If school officials are immune from any liability for illegally strip searching a 13 year old girl for suspected possession of ibuprofen, then what would constitute a "blatent violation of clearly established law?" The Supreme Court's message seems to be: don't violate a students constitutional rights, but you still won't ever be liable in most instances. So what good are our Constitutional protections if there is no remedy for their violation?
More importantly, the Court left it up to Arizona state law to determine if the school district was liable for the actions of the staff who illegally strip searched this young girl. I don't know about Arizona law, but if this happened in Ohio, our state "immunity laws" would give 100% legal immunity to Ohio school districts. As I've written about before, the general rule passed by our Legislature is that schools are not liable for any act of harm or negligence. There are 5 narrow exceptions to this rule, and illegally strip searcing a 13 year old girl does not meet one of the 5 exceptions. Neither does molesting or sexually assaulting a student on school property.
So there you have it. Basically, schools in Ohio are free to violate a student's constitutional rights and state immunity laws trump our federal Constitution when it comes to making schools accountable for crossing the line. This whole issue might not seem like a big deal to some people, but we're not talking about denying Jimmy his afternoon juice break or making him clean erasers after school (believe me, I was an expert at cleaning erasers at Lincoln Elementary in Toronto, Ohio--I got quite used to the neat little machine they had in the gym). Strip searching 13 year old girls and molesting students is serious stuff. I can assure you you'd feel differently if it was your child that was strip searched or molested. There is a saying in the law that "immunity breeds irresponsibility," and the more free legal passes you give a school district for its bad choices and lack of due diligence, the less likely policies and school conduct are to change.
The problem here is there's no balance or sense of fairness to all these immunity laws passed by our Legislature. It's a classic case of the tail wagging the dog, particularly when a violation of one of our most cherished constitutional protections creates no legal accountability once Jimmy walks through the front door of his school.
Friday, June 26, 2009
Monday, June 22, 2009
Rudy Giuliani--Tort Reform Hypocrite
Normally a story about Andrew Guiliani suing Duke University for dismissing him from the golf team would not catch my eye. However, young Guiliani's father, Rudy, has been a notorious basher of lawyers and lawsuits, and an ardent supporter of "tort reform." As I have written about repeatedly, tort reform is code speak for big business and insurance companies' never ending, multimillion dollar push to pass laws to restrict lawsuits, make them more difficult to pursue, and even limit what injured persons can recover for legitimate cases of injury or wrongdoing.
Tort reform was a centerpiece of Rudy's (failed) presidential platform, as evidenced by this clip. In fact, if memory serves, as he was giving his concession speech, he pleaded to the crowd words to the effect "can we please have less lawsuits?"
In fairness to Rudy, his son is a grown man and I have no idea whether Rudy had any involvement in, or support of, this lawsuit. But, I wonder how Dad would feel about a lawsuit over his son being dismissed from a college golf team--one where the magistrate who's hearing the case has recommended that it be dismissed? If Rudy is to be consistent in his position (and we all know that politicians are consistent in their closely held positions, right?) shouldn't he be calling for his son to pay Duke University's legal fees, since Rudy has been a big proponent of "loser pays" laws? After all, if his son loses the lawsuit, hasn't Duke University been "victimized" by a frivolous lawsuit, as Rudy mentioned in the video clip about the dry cleaners who were sued for millions for losing a set of pants?
Hmmm. Somehow I don't think we'll be hearing from Rudy on this one any time soon. And there's a couple reasons for that. After over 20 years of representing people in lawsuits, there are 2 fundamental truths that hold true every time. One is the true definition of a "frivolous lawsuit": One other than MINE. Frivolous lawsuits are ones that OTHER people file.
And the second fundamental truth I've come to learn is that, as a general rule, people look at "tort reform" the same way they look at prisons: sounds good as long as the prison is being built in someone else's back yard, or the legal "reforms" are applied to someone else's case. But when the prison is going in the middle of your town, or in this case the "tort reform" laws begin to directly affect you and your case, suddenly it doesn't look so good.
Care to respond Rudy? Anyone? Mr. Buehler?
Tort reform was a centerpiece of Rudy's (failed) presidential platform, as evidenced by this clip. In fact, if memory serves, as he was giving his concession speech, he pleaded to the crowd words to the effect "can we please have less lawsuits?"
In fairness to Rudy, his son is a grown man and I have no idea whether Rudy had any involvement in, or support of, this lawsuit. But, I wonder how Dad would feel about a lawsuit over his son being dismissed from a college golf team--one where the magistrate who's hearing the case has recommended that it be dismissed? If Rudy is to be consistent in his position (and we all know that politicians are consistent in their closely held positions, right?) shouldn't he be calling for his son to pay Duke University's legal fees, since Rudy has been a big proponent of "loser pays" laws? After all, if his son loses the lawsuit, hasn't Duke University been "victimized" by a frivolous lawsuit, as Rudy mentioned in the video clip about the dry cleaners who were sued for millions for losing a set of pants?
Hmmm. Somehow I don't think we'll be hearing from Rudy on this one any time soon. And there's a couple reasons for that. After over 20 years of representing people in lawsuits, there are 2 fundamental truths that hold true every time. One is the true definition of a "frivolous lawsuit": One other than MINE. Frivolous lawsuits are ones that OTHER people file.
And the second fundamental truth I've come to learn is that, as a general rule, people look at "tort reform" the same way they look at prisons: sounds good as long as the prison is being built in someone else's back yard, or the legal "reforms" are applied to someone else's case. But when the prison is going in the middle of your town, or in this case the "tort reform" laws begin to directly affect you and your case, suddenly it doesn't look so good.
Care to respond Rudy? Anyone? Mr. Buehler?
Monday, June 15, 2009
Drunk Drivers and Uninsured/Underinsured Motorists' Coverage--What You Need To Know
According to a recent report from The National Highway Traffic Safety Association (NHTSA), 566 Ohioans lost their lives to drunk drivers in 2007. That's enough to fill a high school gymnasium. Nationally, 12,998 people lost their lives--enough to fill a football stadium. It's mind boggling to even think about those numbers.
After over tewnty years of representing victims of drunk driving victims, there is one common denominator in drunk driving crashes: most of them carry little to no liability insurance. What this means for the victims is that they eventually have to pursue a claim against their own insurance company to pay for their bills, lost wages, physical injuries, and any future medical costs like surgeries and medications. This is the purpose of buying "uninsured/underinsured motorists'" coverage with your own insurance company.
However, in Ohio, there are 2 major reasons why your "uninusured/underinsured motorists" coverage is probably lousy and won't be enough to protect you financially if you are injured by a drunk driver. There is only 1 solution to correct this problem.
The answer is in my free book: "How To Buy Car Insurance In Ohio To Protect Your Family." Just click on the graphic of the book and you can obtain a free copy.
After over tewnty years of representing victims of drunk driving victims, there is one common denominator in drunk driving crashes: most of them carry little to no liability insurance. What this means for the victims is that they eventually have to pursue a claim against their own insurance company to pay for their bills, lost wages, physical injuries, and any future medical costs like surgeries and medications. This is the purpose of buying "uninsured/underinsured motorists'" coverage with your own insurance company.
However, in Ohio, there are 2 major reasons why your "uninusured/underinsured motorists" coverage is probably lousy and won't be enough to protect you financially if you are injured by a drunk driver. There is only 1 solution to correct this problem.
The answer is in my free book: "How To Buy Car Insurance In Ohio To Protect Your Family." Just click on the graphic of the book and you can obtain a free copy.
Thursday, June 11, 2009
Mandatory Binding Arbitration--Saying Goodbye To Your Rights.
Signing up for a credit card. Building a house or adding on to it. Buying a car. Putting a loved one in a nursing home. Buying a computer or even a new computer battery (my own personal experience). The list goes on and on. Everywhere we turn, companies, builders, and even medical providers are jamming fine print, mandatory, binding arbitration clauses in consumers' faces. In the vast majority of cases, consumers have no choice: either agree to the clause, or no deal. Just try to bargain out of these one sided clauses when you buy a credit card or sign with a home builder and see what happens.
The reason is simple: corporate America wants to bypass the court system and your right to seek redress for any ripoffs, fraud, defective products, etc. This is a rigged game, as a recent NPR report illustrates.
My own experience with "binding arbitration" is 100% consistent with this report. In a simple defective concrete driveway dispute with a builder, my client was forced into binding arbitration. The costs and fees were HORRRENDOUS and because the dispute was under $10,000, we were not even allowed a simple hearing. Under this "system," the arbitrator (who was charging over $300 per hour as I recall)was to "decide" the case based solely upon a "document review." Sounds fair, eh?
These arbitration clauses are a joke and corporate America knows it. The system reminds me of the dictator who announces that "you will be given a fair hearing, and then you will be taken out and shot!"
There is a movement right now in Congress to reform this railroading and make binding arbitration VOLUNTARY, meaning that you as a consumer are free to agree to it, or politely decline it. But the credit card companies are fighting it tooth and nail. These are the same benevolent folks who are looking to strap on additional fees to customers who pay their bills on time in response to the recently passed, consumer friendly "Credit Card Bill of Rights."
If you think these clauses are fair and should continue, check this out. In 2000, auto dealers swarmed on Washington complaining that auto manufacturerers were bullying them and they needed legal relief. Why? Auto manufacturers were inserting mandatory, binding arbitration clauses into their franchise agreements. Auto dealers wanted to retain the right to sue in court when it came to protecting their corporate interests with manufacturers.
So here's the lesson: when these one sided clauses are used AGAINST corporations, they're bad and need to be excised. But when they're used by corporate America against CONSUMERS, they're wonderful and cost effective "dispute mechanisms."
The reason is simple: corporate America wants to bypass the court system and your right to seek redress for any ripoffs, fraud, defective products, etc. This is a rigged game, as a recent NPR report illustrates.
My own experience with "binding arbitration" is 100% consistent with this report. In a simple defective concrete driveway dispute with a builder, my client was forced into binding arbitration. The costs and fees were HORRRENDOUS and because the dispute was under $10,000, we were not even allowed a simple hearing. Under this "system," the arbitrator (who was charging over $300 per hour as I recall)was to "decide" the case based solely upon a "document review." Sounds fair, eh?
These arbitration clauses are a joke and corporate America knows it. The system reminds me of the dictator who announces that "you will be given a fair hearing, and then you will be taken out and shot!"
There is a movement right now in Congress to reform this railroading and make binding arbitration VOLUNTARY, meaning that you as a consumer are free to agree to it, or politely decline it. But the credit card companies are fighting it tooth and nail. These are the same benevolent folks who are looking to strap on additional fees to customers who pay their bills on time in response to the recently passed, consumer friendly "Credit Card Bill of Rights."
If you think these clauses are fair and should continue, check this out. In 2000, auto dealers swarmed on Washington complaining that auto manufacturerers were bullying them and they needed legal relief. Why? Auto manufacturers were inserting mandatory, binding arbitration clauses into their franchise agreements. Auto dealers wanted to retain the right to sue in court when it came to protecting their corporate interests with manufacturers.
So here's the lesson: when these one sided clauses are used AGAINST corporations, they're bad and need to be excised. But when they're used by corporate America against CONSUMERS, they're wonderful and cost effective "dispute mechanisms."
Sunday, June 7, 2009
Hospital Falls And Medicare's New "Never Event" Rules--Can Hospitals "Restrain" Themselves?
As of October, 2008, Medicare announced that it would no longer reimburse hospitals for certain injuries and conditions, known as "never events," that Medicare believes should never happen in hospitals. For example, "wrong site surgery" (operating on the wrong body part) and leaving foreign objects in patients during surgeries are two examples of "never events." Translation: if these things happen in hospitals, Medicare will not reimburse hospitals for the medical costs for the surgeries, follow up care, etc.
So far, so good. It always slayed me that, before these new rules, hospitals or doctors could actually be paid for entirely preventable medical mishaps like leaving foreign objects in patients. But Medicare also added hospital falls to this list. Here's where things get a bit dicey.
As I have written before, patients injured in hospital falls can be tricky situations. First, many falls are preventable due to simple inattention, failure to follow established rules and protocols, inadequate staffing, etc. However, in fairness to hospitals, some patient falls are not preventable even with the best of care and even if all the rules and procedures are followed. I have both successfully litigated some hospital fall cases, and have turned down others in cases where I felt that there was no negligence involved, or it would be difficult to prove.
Medicare's purpose in formulating its list of "never events" is clear: to promote an increased emphasis on patient safety by creating a financial disincentive to hospitals in the event that these "never events" continue to occur.
Enter the "law of unintended consequences." According to a recent article in The Boston Globe, a Harvard Medical School Physician believes that Medicare's refusal to pay for patient falls in hospitals will encourage hospitals to use more
physical restraints to reduce the risk of falls. While another physician in the article disagreed with this assessment, the point is that hospitals may be considering increased use of physical restraints in the future as a method of preventing falls.
What's the lessson of all this if you have a loved one in the hospital? If you are noticing that he or she is being regularly restrained, you are entitled to know if there is a legitimate medical reason for it, or whether the hospital has instituted an aggressive restraint policy as a result of these new Medicare rules. At least it's a conversation worth having with the nursing manager. The bottom line is that if a hospital is going to restrain patients, it should be for legitimate medical reasons rather than financial ones...
So far, so good. It always slayed me that, before these new rules, hospitals or doctors could actually be paid for entirely preventable medical mishaps like leaving foreign objects in patients. But Medicare also added hospital falls to this list. Here's where things get a bit dicey.
As I have written before, patients injured in hospital falls can be tricky situations. First, many falls are preventable due to simple inattention, failure to follow established rules and protocols, inadequate staffing, etc. However, in fairness to hospitals, some patient falls are not preventable even with the best of care and even if all the rules and procedures are followed. I have both successfully litigated some hospital fall cases, and have turned down others in cases where I felt that there was no negligence involved, or it would be difficult to prove.
Medicare's purpose in formulating its list of "never events" is clear: to promote an increased emphasis on patient safety by creating a financial disincentive to hospitals in the event that these "never events" continue to occur.
Enter the "law of unintended consequences." According to a recent article in The Boston Globe, a Harvard Medical School Physician believes that Medicare's refusal to pay for patient falls in hospitals will encourage hospitals to use more
physical restraints to reduce the risk of falls. While another physician in the article disagreed with this assessment, the point is that hospitals may be considering increased use of physical restraints in the future as a method of preventing falls.
What's the lessson of all this if you have a loved one in the hospital? If you are noticing that he or she is being regularly restrained, you are entitled to know if there is a legitimate medical reason for it, or whether the hospital has instituted an aggressive restraint policy as a result of these new Medicare rules. At least it's a conversation worth having with the nursing manager. The bottom line is that if a hospital is going to restrain patients, it should be for legitimate medical reasons rather than financial ones...
Tuesday, June 2, 2009
Auto Policies and Exclusions: Dirty Secrets Insurance Companies Don't Want You To Know
It's about time that the auto insurance industry's use of under radar, fine print "exclusions" to deny coverage under "full coverage" auto policies is exposed to the light of day. Recently, The Ohio Association For Justice (OAJ) issued a comprehensive report (authored by yours truly) highlighting how companies are inserting "interfamily exclusions" in auto policies to deny coverage for family members who are occupying the family vehicle and injured by a fellow family member's negligence. As a result, the Cleveland Plain Dealer and The Dayton Daily News wrote about the unfairness of these exclusions in recent articles. Two examples of this exclusion in real world situations shine a spotlight on how unfair and ridiculous this exclusion is.
Example no 1: You and your family (wife, two minor children) are taking a family vacation in your fully insured family car. You fall asleep at the wheel, and seriously injure your spouse and children. Your "full coverage" auto policy has "medical payments" coverage of only $5,000 per person. But it also includes $500,000 in liability coverage and an equal amount in "uninsured/underinsured motorists' coverage.
Result: your family has no right to make a claim under the liability portion of the policy for your driving negligence, due to the "family exclusion." Similarly, the injured family members have no right to make a claim under the uninsured/underinsured motorists' provision of your policy because of a similar exclusion. Translated: all your insurance company owes is the $5,000 per person limits, for a total of $15,000, even if the family's total medical bills are $250,000, for example, and even though your "full coverage" policy has $500,000 in coverage.
Example No 2: You are driving your "fully insured" vehicle on a golf or fishing or shopping trip with friends. You allow one of your friends to drive your car and he/she negligently wrecks the car, seriously injuring you. Your medical bills are over $100,000 and you've lost your yearly wages of $50,000 due to your injuries. You come to learn afterwards that your friend has minimum liability limits (a paltry 12,500 in Ohio), making him "underinsured" to cover all your injuries.
But you're not concerned. You have a "full coverage" auto policy that includes $500,000 of underinsured motorists coverage that your agent said would protect you if injured by an "underinsured motorist."
Result: you can't collect anything other than your $5,000 medical payment limits from your "full coverage" auto policy. Why? Your liability coverage with the "family" exclusion prohibits you from recovering under the liability portion of the policy. But wait, you say, doesn't your "underinsured motorists" coverage allow you to collect up to your $500,000 limits if injured by an "underinsured motorist," i.e. your friend with minimum limits? Not under Ohio law--your "underinsured motorists" coverage exclusion says that your own vehicle can't be considered an "underinsured" vehicle. Therefore, you have NO coverage under your "full coverage" policy for any losses over $5000.
Does this make any sense at all? Are you sufficiently confused at this point? You should be--and that's the point. There's no way for the public to know about or even comprehend these exclusions when they buy auto insurance. Before 2001, these exclusions were unenforceable. However, a recent legislative change to Ohio law has allowed insurance companies to re-insert these (and other) one sided exclusions into auto policies with impunity. Insurance companies are now allowed to make these policies as onerous and one sided as they please, and the Ohio Supreme Court has upheld certain exclusions under this 2001 law.
Now here's where these exclusions REALLY get ridiculous and downright bizarre. In the "family vacation" example, if you took a family friend on the family vacation and he was injured, he could collect up to the $500,000 liability limits--even though your family members, whom you paid coverage for, could not! And in the "friends outing" example, any other non-driving friends injured in your vehicle could recover up to the limits of your $500,000 liability coverage for your friend's driving mistake while driving your vehicle. In fact, if you picked up a HITCHIKER on your trip, he would be covered as well, but you and your family members would have no coverage!
No consumers in their right mind would expect that their family would not be covered while injured in the family car, while friends or strangers injured in the same vehicle would be covered. Were you told this by your agent or friendly online "customer service representative" when you were sold your "full coverage" policy? This tangled web of insurance double speak and confusion proves that the industry's use, and the public's understanding of, a "full coverage auto policy" has become a garbage, meaningless term. It has become an oxymoron, like "jumbo shrimp" or "hot water heater." And you're paying hundreds or thousands in premuims for this "coverage." The bottom line is that you as a consumer are not getting the coverage you paid for when you need it the most: to protect yourself and your family.
It is OAJ's hope that these "rigged game" exclusions are brought to the attention of the public and The Ohio Legislature, and some corrective legislation gets rid of them once and for all.
Example no 1: You and your family (wife, two minor children) are taking a family vacation in your fully insured family car. You fall asleep at the wheel, and seriously injure your spouse and children. Your "full coverage" auto policy has "medical payments" coverage of only $5,000 per person. But it also includes $500,000 in liability coverage and an equal amount in "uninsured/underinsured motorists' coverage.
Result: your family has no right to make a claim under the liability portion of the policy for your driving negligence, due to the "family exclusion." Similarly, the injured family members have no right to make a claim under the uninsured/underinsured motorists' provision of your policy because of a similar exclusion. Translated: all your insurance company owes is the $5,000 per person limits, for a total of $15,000, even if the family's total medical bills are $250,000, for example, and even though your "full coverage" policy has $500,000 in coverage.
Example No 2: You are driving your "fully insured" vehicle on a golf or fishing or shopping trip with friends. You allow one of your friends to drive your car and he/she negligently wrecks the car, seriously injuring you. Your medical bills are over $100,000 and you've lost your yearly wages of $50,000 due to your injuries. You come to learn afterwards that your friend has minimum liability limits (a paltry 12,500 in Ohio), making him "underinsured" to cover all your injuries.
But you're not concerned. You have a "full coverage" auto policy that includes $500,000 of underinsured motorists coverage that your agent said would protect you if injured by an "underinsured motorist."
Result: you can't collect anything other than your $5,000 medical payment limits from your "full coverage" auto policy. Why? Your liability coverage with the "family" exclusion prohibits you from recovering under the liability portion of the policy. But wait, you say, doesn't your "underinsured motorists" coverage allow you to collect up to your $500,000 limits if injured by an "underinsured motorist," i.e. your friend with minimum limits? Not under Ohio law--your "underinsured motorists" coverage exclusion says that your own vehicle can't be considered an "underinsured" vehicle. Therefore, you have NO coverage under your "full coverage" policy for any losses over $5000.
Does this make any sense at all? Are you sufficiently confused at this point? You should be--and that's the point. There's no way for the public to know about or even comprehend these exclusions when they buy auto insurance. Before 2001, these exclusions were unenforceable. However, a recent legislative change to Ohio law has allowed insurance companies to re-insert these (and other) one sided exclusions into auto policies with impunity. Insurance companies are now allowed to make these policies as onerous and one sided as they please, and the Ohio Supreme Court has upheld certain exclusions under this 2001 law.
Now here's where these exclusions REALLY get ridiculous and downright bizarre. In the "family vacation" example, if you took a family friend on the family vacation and he was injured, he could collect up to the $500,000 liability limits--even though your family members, whom you paid coverage for, could not! And in the "friends outing" example, any other non-driving friends injured in your vehicle could recover up to the limits of your $500,000 liability coverage for your friend's driving mistake while driving your vehicle. In fact, if you picked up a HITCHIKER on your trip, he would be covered as well, but you and your family members would have no coverage!
No consumers in their right mind would expect that their family would not be covered while injured in the family car, while friends or strangers injured in the same vehicle would be covered. Were you told this by your agent or friendly online "customer service representative" when you were sold your "full coverage" policy? This tangled web of insurance double speak and confusion proves that the industry's use, and the public's understanding of, a "full coverage auto policy" has become a garbage, meaningless term. It has become an oxymoron, like "jumbo shrimp" or "hot water heater." And you're paying hundreds or thousands in premuims for this "coverage." The bottom line is that you as a consumer are not getting the coverage you paid for when you need it the most: to protect yourself and your family.
It is OAJ's hope that these "rigged game" exclusions are brought to the attention of the public and The Ohio Legislature, and some corrective legislation gets rid of them once and for all.
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