Tuesday, March 23, 2010

Recent Ohio Supreme Court Decision Now Makes It Legal For Employers To Knowingly Injure Employees

How can a law limiting employers' liability for workplace injuries be declared unconstitutional twice and now be suddenly declared constitutional? This week, The Ohio Supreme Court, in Kaminski v. Metal And Wire Products Inc, upheld a 2005 Ohio law that prohibits injured workers and their families from suing unless the employer deliberately intended to injure its employees. You can read about what some pundits assign as a major reason for the Ohio Supreme Court's recent decison throwing out essentially all workplace injury lawsuits here, but first some examples of the way the law used to be before Kaminski...


Three examples show what kind of evidence was necessary in Ohio to hold an employer liable for certain workplace injuries:

Example No 1: You complain to your boss that the machine you are working on is malfunctioning and you are afraid you'll be injured if you continue working on it. You are told by your boss to get back to work or they'll find someone else to replace you. You return to the machine and it entraps your arm and amputates it two days later.

Example No 2: Two employees are responsible for climbing down a manhole to inspect it. No safety masks are provided to either of them. One climbs down the manhole and is overcome by fumes and is lying motionless at the bottom. The supervisor ties a rope around the second employee, who climbs down the manhole in an affort to tie the rope around the passed out employee and lift him out of the manhole. The second employee is overcome by fumes as well. Both employees die before EMS arrives.

Example No. 3: A laborer is shoveling dirt in a narrow, excavated ditch in order to lay some undergorund pipe. There is no bracing of the walls of the ditch in clear violation of OSHA standards. The walls of the ditch collapse, suffocating the worker to death. This is the second time the employer has allowed a ditch to collapse on a worker due to a lack of safety bracing. The first instance, however, did not result in serious injury.

Before the Kaminski decision, employers in Ohio could be sued for knowingly exposing workers to serious injuries or death or deliberately ignoring safety standards or legitimate employee complaints of workplace hazards. Not any more.

Strangely, the Court in Kaminski bypassed at least four previous Supreme Court cases that held employers liable if they knew with "substantial certainty" that employees would be injured and nevertheless exposed them to workplace dangers. In fact, on two prior occasions, The Supreme Court threw out as unconstitutional previous attempts by The Ohio Legislature to narrow employers' liability to a "deliberate intent to injure the employee" standard.

Not happy with these decisions, The Ohio Legislature, for a third time, passed another "deliberate intent to injure" law in 2005. Apparently not subscribing to the "three strikes and you're out" adage, The Ohio Supreme Court has now curiously upheld this law.


What does the Kaminski decision now mean for workers injured on the job? If the machine or workplace practice in question has a known history of injuries or problems and the employer does nothing, allowing employees to be injured, too bad. If the employer willfully violates workplace safety rules and employees are maimed or killed, that's OK too. No liability for the employer-- period.

What does the new "deliberate intent to injure" standard mean as a practical matter? You can't sue your employer for a workplace injury unless your employer specifically intended to injure you. How drastic is that standard? It's the same proof required to prove a murder or a criminal assault. In other words, unless your supervisor intentionally runs you over with a forklift or deliberately smashes you with a pipe or hammer, you can't sue your employer.

Why was this law passed in 2005? The business community and special interests like The Manufacturers' Association and The Chamber Of Commerce pushed for it as being "good for Ohio businesses." You know, the typical legal "predictibility" and "fairness to businesses" tort reform rhetoric that makes businesses want to flock to Ohio because of these laws, so these groups say. And now, after ruling on two previous occasions that this law was UNCONSTITUTIONAL, The Ohio Supreme Court has done a judicial 180 and blessed it as constitutional.

The Cleveland Plain Dealer said it best with this headline. According to business groups, laws like this one, and business friendly rulings from Ohio courts, are supposed to drive businesses and jobs back to Ohio. I'm sure once word of this decision gets out, businesses and jobs will come pouring in to The Buckeye State (insert sarcasm here). Never mind that injured Ohio workers will have no full recourse against companies that take safety shortcuts. Just another price to pay for making Ohio "attractive for business" I guess.

Meanwhile, we Ohioans keep waiting for all the benefits of Ohio tort reform laws almost a decade old now. You know, the decreased health, auto, and homeowners' insurance premuims we were promised, less businesses leaving Ohio, more businesses coming, and the flood of jobs...waiting...waiting...still waiting...

My headline is a little different: "Welcome To Ohio Inc."

Monday, March 22, 2010

Motorcycle Blind Spots And Large Trucks

Backing a large truck is one of the most hazardous manuevers a driver faces. One major reason is due to a major blind spot behind the truck due to the sight limitations of the truck's side view mirrors.

Case in point: we recently resolved a case where an operator of a commercial garbage truck began to back up at the intersection of two major state roads in an effort to access a private driveway. The driver literally ran over a motorcyclist that was stopped behind the truck approximately 20-25 feet. Because the truck began to back up at a higher rate of speed than normal, and because of oncoming traffic in the opposite lane, the motorcyclist had nowhere to go when he perceived that the truck was continuing to back up and was not stopping. And since a motorcycle has no "reverse gear," the garbage truck driver unfortunately ran over the motorcyclist despite his efforts to evade the oncoming truck.

We employed a team of experts to re-create the accident and perform a blind spot analysis of the truck. Using an exemplar motorcycle, we established that the truck had a blind spot (defined as the distance behind the truck in which the motorcycle could not be seen in the side view mirrors) of an astonishing 106 feet.

The lessons here are obvious. First, large trucks should avoid backing up if at all possible. In this case, the inexperienced driver could have pulled directly into the driveway instead of the risky maneuver of attempting to back up over 63 feet on a state route in order to back into the driveway. Secondly, the driver failed to use a spotter (the fellow employee in the truck) to exit the truck and assist the driver in backing up, where the motorcyclist would have been easily seen. it is precisely for this reason why all Comercial Driving License (CDL) manuals strongly discourage backing and encourage the use of spotters if at all possible.

For all you motorcyclists, I imagine you would be suprised to learn that a large truck's blind spot for motorcycles is over 100 feet (it sure suprised me). So make sure you give yourself some extra distance behind a large truck if you find yourself stopped behind one. In our case our client did nothing wrong but, armed with this newfound knowledge, the extra distance you give yourself may give you the extra second or 2 you need to avoid the carelessness and inexperience of others.

Attorneys Calling After An Accident

Some of my colleagues (and some of our clients as well) are reporting an increasing number of "cold calls" by attorneys to car accident victims shortly after an accident. THIS IS ILLEGAL IN OHIO AND IS PROHIBITED BY OUR ETHICS RULES!!!I'm pretty sure it's illegal in many other states as well. Any attorney or firm that phones Ohio car accident victims is subject to discipline for doing so. In fact, any shysters who engage in such illegal contact have already proven their untrustworthiness by breaking our ethical rules when they call you! How's that for a sales pitch: "I'm breaking the law by calling you but you can trust me to handle your Ohio accident claim!"

Here's what you can do if you receive one of these calls: ask for their name when they call and want to set up an appointment. Make a note of the number on your home phone or cell. And then call your local county bar association and report them immediately.

If these crooks are called on the carpet, the word will spread and it just might put a stop to this nonsense. It's hard enough dealing with the aftermath of an accident and all the concerns it brings, such as dealing with adjusters for your car repairs, who is going to pay your medical bills, and what insurance papers you should or should not sign. The last thing accident victims need is a flurry of calls from chiropractors and, now, illegal phone calls from opportunistic ambulance chasers who are breaking the law.

The old adage about "a few bad apples" holds true once again...

Saturday, March 13, 2010

Hospitals Owning Up To Their Mistakes--It IS Possible

Some hospitals and CEO's get it--that when mistakes happen, full accountability and transparency is the only right choice. Two hospital CEO's recently recounted preventable medical mistakes that caused unnecessary deaths in their hospitals. One CEO candidly relayed how a preventable methicillin resistant staff infection (MRSA) spread through the hospital's neo-natal intensive care unit and sadly took the lives of possibly three infants:

That infection was part of a spread of a bug in his neo-natal intensive care unit that led to the colonization of 18 infants in all, and may have contributed to the death of two others. "This was a direct result of staff not washing their hands appropriately," he said. Since that event, "we have been on a relentless hand hygiene campaign."

The crux of his, and the entire presentation hinged on this comment: "My objective today is to confess," Wiles said. "I am accountable for those unnecessary deaths in the NICU. It is my responsibility to establish a culture of safety. I had inadvertently relinquished those duties" by focusing instead on the traditional set of executive duties (financial, planning, and such).

Wiles ended his talk to the CEOs in the audience, saying, "If you cannot see the face of your own relative in a patient, or if you can not see the face of your own son or daughter in the face of a distraught nurse or doctor who has made an error, I suggest that your executive talents would be better placed in other industries."

The other story from the second CEO is equally compelling. These gentlemen deserve credit and accolades for stepping to the plate, admitting medical errors when they occur, and making necessary changes.

Too often, here's what usually happens, in this order: there is a huge medical mistake, or the family knows enough to suspect one was made, inquiries are made, the family is shuffled around to various officials who "don't really know what happened" but who "will get back to you", etc. Bottom line: the family is left with no real answers as to what happened. When the dust settles and the family finally obtains the "official" medical records, it's analagous to a hunk of swiss cheese: lots of holes or gaps, in the form of a lack of information. Or worse yet, information or data that has been destroyed or is curiously "missing."

A culture of safety? The norm is a culture of outright denial after a medical event. The eventual lawsuit is filed, where the hospital is given an opportunity to admit responsibility, which is usually denied even when the mistake is relatively obvious. Some medical observers have argued that until hopsitals develop a culture of safety similar to the airline industry, preventable medical errors will continue to be prevalent. It is estimated that upwards of 100,000 patients die every year in hospitals due to preventable medical mistakes.

The candor of the CEO's is refreshing especially when compared to some for profit hospital chains where a "business model" of hospital acquisitions, "earnings per share," and EBITDA (earnings before interest, taxes, depreciation, and amortization)occupies a higher pecking order than a culture of patient safety.

Monday, March 8, 2010

Let's Get Rid Of All Personal Injury Lawsuits And See What Happens

With apologies to Jonathan Swift's classic "A Modest Proposal,"** the thought occurred to me: what if we simply banned personal injury lawsuits? After all, according to many pundits, "think tanks," and politicians, aren't they simply a drain on our national economy? According to The Chamber Of Commerce, they stifle innovation and product development, drive up the cost of goods and services, and insurance.

Similarly, medical malpractice lawsuits are claimed to cause physicians to practice "defensive medicine," causing a drain on our health care system, and increasing health care costs and insurance. According to the medical industry, this lawsuit "crisis" has spawned the need to cap or limit victims' recovery even in cases of preventable and serious malpractice injuries.

If things are THIS bad, and one of the root causes is our "litigation culture," "runaway juries," and our "sue happy" society, maybe we should consider doing something radical: an outright ban on all personal injury lawsuits. Maybe not a permanent ban, but a reasonable "moratorium" for a set number of years. Freed of this lawsuit millstone on our national economy, businesses will thrive, unencumbered by pesky and expensive lawsuits. Doctors and hospitals will be freed from the shackles of over the shoulder second guessing by personal injury lawyers seeking to cash in on patient care and and routine operations gone horribly wrong.

This moratorium, coupled with reliance on free markets and a ban on nitpicking and costly governmental regulation, will be good economically for everybody. Total freedom of the marketplace, from manufactured products to medicine to the financial services industry, where each person is free to enter into any transaction or service based upon unadalterated trust.

That large foreign object left inside you during routine surgery? Sorry, but doctors and hospitals need relief from the burdensome litigation costs associated with your injury, so not being able to sue them will be good for you--and all of us--in the long run. Your Toyota suddenly accelerated and caused a crash that killed a family member or an innocent bystander? Well, Toyota needs to compete in a competitive and underperforming economy, and if they get sued too many times, they might be forced to leave Texas and other states where they have factories, and those jobs are too important to sacrifice at this time.

This moratorium will only apply to personal injury lawsuits. Businesses need to maintain the right to have unfettered access to the courts to enforce contracts and valuable business deals, which we all know are vital to their bottom lines and their continued viability. Of course, the benefits of their full access to courts and full recovery of their business damages will be passed on to all of us in the form of reduced prices and more jobs.

Our need for a robust and healthy economy is just too important at this time in our history to be bogged down with money draining personal injury lawsuits and shopworn notions of "accountability." therefore, if you've been maimed or lost a loved one due to someone's carelessness, I'm sure you understand the need to sacrifice your interest in lawsuits for the good of the whole. Consider it your patriotic duty as an American, similar to the personal sacrifices we made during World War II.

All you injured folks, and the scores of personal injury attorneys who bring these lawsuits, must realize that the benefits of suing occasional wrongdoers are outweighed by the collective harm and expense due to all these lawsuits. So it is necessary to put your rights on hold.

A national lawsuit "timeout"--what's unreasonable about that? What is being proposed right now--a national movement towards limiting malpractice victims' recovery, is a necessary first step towards this goal, but will do nothing to cure the annoying problem of continued lawsuits against doctors and hospitals.

Therefore, when you show up at town hall meetings and insist on legal reforms limiting peoples' rights, consider asking your Congressional representative to get a spine and stop the lame "watering down" of their rights. Tell him or her that you want the ultimate solution to the vexing lawsuit problem and cut lawsuits out of the mix altogether. Tell them that you are a TRUE tort reformer, ready and willing to forego your rights as a patriotic, "get government out of my life for once and for all" American.

So let's have a national ban on personal injury lawsuits for, say, five short years or so and let's see what happens.

Sometimes the quickest way to usher out a movement--in this case, "tort reform"--is to hasten its coming. After all, every "movement" or "reform" eventually hits home, and mutates from an abstract proposition to something personal. Like removing the wrong breast beacuse the pathology slide was misread or mixed up with another patient. Or a defective car or bus that careens out of control and kills a bunch of people. But, hey, sacrifices must be made for the good of everyone. If you are a true believer, I'm sure you'll be first in line to give up your rights.

Which brings me to the real world definiton of a "frivolous lawsuit:" one other than mine. Tort reform sounds good from a distance until it is applied to you, and then it's not so appealing.

** For the real meaning of Swift's time honored "A Modest Proposal," click here

Saturday, March 6, 2010

Hospital Patient Safety Tip: Beware Weekend Medicine

Two years ago we wrote "Nine Tips To Keep You Safe When Dealing With Doctors And Hospitals." (available for free on our website). These patient safety tips are lessons we learned from our experience in litigating Ohio medical malpractice lawsuits. One frequent observation we noted from handling malpractice cases: having a surgery on a Friday often turned disaterous for the patient. It was our observation that "weekend medicine" sometimes (and certainly not always) meant a lack of attention to detail, delay in responding to the patient's symptoms, and delay in physician response to phone calls, pages, etc.
In fact, in our patient safety piece we wrote:

3. “Can We Reschedule This for a Tuesday?”

Avoid major surgery on Fridays if at all possible. We have seen a significant correlation between Friday surgeries and serious mistakes that occur over the weekend. Perhaps the physician is called on a Saturday evening and doesn’t want to come in, directing important medical decisions to others who aren’t as familiar with all the medical details. Staff may be reduced; the possibilities are endless. And we’re willing to bet that if you asked your physician or nurse friend about this issue, they might agree.

This may not come as a surprise as most people people don't like to work weekends, and medical professionals on call might be busy with personal "stuff."

But until recently, our observations from handling Ohio surgical error or hospital malpractice cases were unscientific and anecdotal at best. Lo and behold, a recent medical study concludes that weekend hopsital care is not as prompt as weekday care, and may be bad for your health.

This study essentially validates our unscientific observations about weekend medicine. What's the takeaway from all this for the public? If your loved one is in the hospital on a weekend, be more vigilant. Stay a little longer at bedside. Be more persistent with staff. And don't be afraid to speak up.

Thursday, March 4, 2010

U.S. Health Care Wastes 700 Billion Per Year...And The Problem With Defining "Defensive Medicine"

A recent report highlights the colossal waste imposed by our health care system, and the price tag is a whopping 700 billion per year. According to the report, 60% of this waste is attributable to outright fraud and repeated medical mistakes.

The remaining 40% is attributable to unnecessary tests, commonly known as "defensive medicine," i.e physician ordered tests to avoid malpractice exposure. The AMA and certain politicians are famous for decrying "defensive medicine" as a reason for medical liability "reform."

But here's the problem: how do you OBJECTIVELY define what exactly is defensive medicine? A few examples illustrate how that term can be twisted and "spun" for political mileage. A few years back, I developed chest arm pain and numbness while driving. I visited my family doctor, whom I respect greatly. When I explained my symptoms, he said: "You exercise and are not overweight, and I am convinced that your symptoms are not heart related. However, to make absolutely sure, I will order a stress test just to be safe."

Sure enough, the test was negative. I can assure you that my doctor ordered this test for one reason: he was concerned for my well being, and wanted to rule out the rare possibility that I had a heart problem.

Yet, ordering my stress test could have easily been labelled "defensive medicine" by those inclined to label it as such in order to proclaim that malpractice avoidance was the sole reason for ordering the test. That's where the defensive medicine label becomes mushy; many tests are ordered to rule out the low possibility of a potentially lethal problem.

Likewise, if you go to the ER with the worst excruciating headache of your life, and have no history of massive headaches, chances are that you probably don't have a brain bleed or aneurysm. Yet, if there's a 5% chance you're experiencing a brain bleed, there's a good chance you might drop dead if you leave the ER. So if the ER doc orders a CT Scan to rule out a brain bleed, is is being ordered it SOLELY to cover the doctor's butt against a malpractice claim, or is it being ordered as a cautious and prudent measure to rule out the possibility of a remote but lethal condition?

Ask anyone if they would want a CT Scan under those circumstances and 100% of all people would want it. Yet, a physician might claim that this was purely "defensive medicine."

Moral of the story? It's easy and convenient to label tests as "defensive medicine," even if they can be medically justified. But one doctor's defensive medicine is sometimes prudent medicine in the eyes of the patient.

All this aside, here's the absolute BEST question to ponder on this issue: would the doctor order the CT Scan if it were his parent, spouse, or child, or would he or she just send them home? Hmmm....