Thursday, April 19, 2012

Who Is Responsible For A Sponge Or Towel Left In A Patient After Surgery--The Surgeon Or The Hospital?

Answer: it depends, and sometimes both are legally liable. Every hospital has written procedures and protocols for the correct counting and inventory of any products utilized during surgery like sponges, gauze, towels, forceps, clamps, needles--you name it. In fact, one or more members of the surgical team usually documents at the end of the procedure that "all sponge/needle counts are correct."

Despite this "documentation," hundreds if not thousands of "foreign objects" are left in patients every year in this country. In a case I co-counseled a few years ago, a surgeon left a large towel inside a patient's chest cavity and, sure enough, the count of objects used during surgery was "correct" in the surgery record.

If the surgeon is an employee of the hospital, the hospital is liable anyway and it really doesn't matter if the surgeon or surgical team was responsible for dropping the ball (or perhaps dropping the sponge is a more accurate phrase).

But what if the surgeon is not employed by the hospital? As pointed out here, some states impose on the surgeon an independent legal duty to verify a correct count at the end of the procedure. If this is the case, both the surgeon and the hospital can be jointly liable for negligence.

In other states, the surgeon is considered the "captain of the ship" and can under certain circumstances be held solely liable. In Ohio, one or both can be held liable, and this makes sense given the fact that hospitals can and should have procedures in place for their surgical team-employees to mandate an accurate count.

But one thing is clear: when something like this happens, you can expect some finger pointing between the surgical team and the surgeon, with each claiming the other messed up the count. It reminds me of an old Bill Cosby comedy album (yes, an album and not a CD, so I'm dating myself) I used to own where he joked that he had re-named his kids "I don't know" and "not me" because that was their standard response when grilled by him after something got broken....

Thursday, April 12, 2012

Consumers Turning To Social Media To Make Companies Listen

I love my clients--they come up with some of the greatest ideas! Just recently, I met with a really nice guy who was involved in a collision with a company truck owned by a "national telecommunications company" (we'll leave their name out of it). He's a disabled vet with a rebuilt knee that took a shrapnel hit in Vietnam.

He drives a large pickup because it is much easier on his crippled knee to get in and out of a truck or SUV than a regular passenger car. His truck is seriously mangled in the crash and it needs to be repaired. What's worse, he and his siblings are taking care of their gravely ill mother with 24/7 care at her home, so he needs a vehicle for his shift.

Enter the "national telecommunications company's" insurance company.

Long story short, there is considerable delay in getting his car appraised. After the appraisal, the adjuster refuses his request for a pickup truck or SUV as a rental vehicle. He is told "I see no need for allowing this" or words to that effect and is offered a small passenger car. He calls the "national telecommunications company" and relays this to them, and is promised that they'll "look into it," but after almost one month the truck is still not fixed and he's still without a car that suits his specific medical needs.

What he does next is brilliant.

He calls both the "national telecommunications company" and the insurance company and tells them that unless he gets the pickup truck or SUV he's been asking for, he is going to go on YouTube and post a video detailing how both companies treated a disabled war veteran after making a modest request for a different vehicle in an accident that was not his fault.

One hour later, the phone rings. It' guessed it...the rental car company. "We have an SUV for you, sir."

What's the message here? Social media, with the power of a few keystrokes or a smartphone video camera, can be a real equalizer when you're working your way through an endless maze of red tape, rigid "policies and procedures," and folks who may not be inclined to care about your plight or help you. I'm not suggesting that hopping online and posting a video or scathing comments is the answer to every corporate dead end you run into. You have to pick and choose your battles, and you have to be smart about it. You could easily cross the line and get yourself in a legal mess if you're not careful (you might want to brush up on your state's defamation and libel laws before turning on any video camera).

It used to be that you wrote a scathing letter and that was about it. Corporate America has always had quite a few weapons at its disposal, some legit and some sketchy, to deal with complaints. But with the advent of Twitter, Facebook, and numerous consumer complaint websites, one thing scares the hell out of them, and it's something they can't really control at the home office: VIRAL COMPLAINTS.

Thanks to social media, sometimes the little guys and gals can occasionally claim "scoreboard" too.

Monday, April 9, 2012

What Happens To Your Ohio Auto Claim If You Are Partially At Fault In The Crash?

"The adjuster claims I am partially at fault in the accident and he won't offer me full value on my (car)(injury claim)." I occasionally hear this when clients call me after hanging up the phone with the adjuster.


"Contributory" or "comparative" negligence in Ohio are terms that mean the same thing: that you contributed to the collision due to your own negligence. Typical scenario: someone ran a stop sign and clobbered you and there is some evidence to suggest that you may have been speeding (more about that below). Some simple examples will help explain this concept and how it affects your claim.

Let's assume your $10,000 car was totalled in an accident and you were 20% at fault in the collision. In Ohio, the insurance company for the driver who was 80% responsible would owe you only $8,000 ( the value of your $10,000 car minus your 20% fault in the collision). If you and the other driver were deemed 50% responsible, the insurer for the other driver would owe you $5,000.

But if you were deemed 51% at fault, the insurer for the other driver would owe you nothing under Ohio law. Bottom line: your claim can be reduced by the percentage portion of your own contributory negligence, and it can be eliminated altogether if your negligence exceeds 50%.


Because of Ohio's comparative negligence laws, it behooves you to carry collision insurance with your own insurance company. The reason is simple: IT'S NO FAULT COVERAGE AND NOT SUBJECT TO "COMPARATIVE" NEGLIGENCE!! So, in that 80/20% collision I referred to above (where you were 20% negligent), you can make a claim against your own insurance's collision coverage for the entire value of your $10,000 car. They'll pay you 10K, and get back 8K from the at fault party's insurance company (this is known as subrogation).

But if you don't have collision coverage, you are at the mercy of the 80% at fault driver's insurance company's argument that they only owe you $8,000 on your totalled car.


The same rules apply to your personal injury claim in Ohio. How are these percentages determined? It can be as arbitrary and unscientific as an adjuster stating "we believe your client was 25% negligent for not wearing his seatbelt." This is not necessarily true under Ohio law as there are many exceptions to this rule, but it doesn't stop an insurance company from arguing it to an injured person "going it alone" without an attorney who is unaware of the limitations of R.C. 4513.263(F)(2)--or worse yet a clueless attorney representing an injured client who is unaware of this law.

Another common tactic is to claim that the injured person was speeding and was therefore contributorily negligent. In many situations, speed has no direct bearing on the cause of a collision. Example: you're going 58 mph in a 55 mph zone and someone blows a red light and T-bones you. That collision would have happened if you were going 55 or 57 or 58 mph, so the fact that you were 3 miles over the limit is irrelevant.

But none of this stops insurance companies from occasionally making these arguments in an effort to save a few thousand bucks. The key is to know how to smoke out any suspect contributory negligence arguments from the occasional legitimate ones.

Wednesday, April 4, 2012

Chiropractors Calling After An Auto Accident--Avoid The Machine

Machines can be dangerous. If you've been in an auto accident, you'll soon be introduced to a machine of sorts.

Within a day or two of a crash, the phone rings. It's usually from some innocently sounding "help center" or "injury hot line." They get your name from accident reports, which are public records. Many times these calls are from out of state phone numbers. Why, you ask? Because many states prohibit chiropractors (and attorneys) from calling car crash victims directly (hence the out of state "wellness center" to get around this "technicality").

The "pitch" takes various forms:

"The insurance company wanted me to check and see if you were hurt."

"I'm calling to check on your injuries" without identifying who they are. If pressed, they identify some "help" or "wellness" center.

If you deny being hurt in the collision, a standard scripted response might be "we need to have that medically documented and we can refer you to a provider in your area for a free exam."

This happened to a client recently. He responded to such a call and took his son in with him (both were involved in the accident). First initial visit: over $500 for each of them due to countless x-rays and other "modalities." Suspicious, he left that office, called me, and eventually went to his family doctor and got hooked up with a reputable chiropractor of his choosing (there are many out there, by the way).

But before he abandonned the previous chiropractor's office, he signed a paper agreeing that any settlement money is now the chiropractor's property to the extent of the outstanding bill.

And, the fired chiropractor is now refusing to turn over all the x-ray reports to the new chiropractor.

Look, insurance companies know all about these business practices and scrutinize the hell out of them and the attorneys who routinely "pop up" time and time again with the same chiropractic office on countless auto accident claims.

In this maze of confusion, here's a big clue as to what to do after an accident. If they're coming after you within just a few days after an accident, as opposed to you doing your own homework, it's a huge red flag. Avoid the callers from help centers and the fancy DVD's and slick mail brochures that practically tilt your mailbox. Otherwise, you're about to step into a well orchestrated, sophisticated machine that I referred to above. In my opinion, it's a machine that was not designed and speced on what's in your best interests.