Wednesday, September 11, 2013

What Happens If Two Drivers Injured Me?

An example will hopefully show how Ohio law allocates responsibility when more than one party is responsible for an auto accident. A driver is on her way to work when she’s rear ended by another motorist (let’s call him negligent driver No 1). She pulls her car over to the side of the road and safely exits her car.

Unbeknownst to her, a second motorist (negligent driver No 2) traveling in the same direction is not paying attention and hits her off the road, in the berm.

How responsibility among the two negligent drivers is allocated depends upon the injured motorist’s injuries. If her injuries are “indivisible,” meaning that it cannot be determined which negligent driver caused which injuries, then under Ohio law both negligent drivers are presumed to be liable for all of her injuries. The negligent drivers would then have the burden to prove which of those injuries they caused or didn’t cause.

On the other hand, if the injuries were “divisible,” meaning that each negligent driver caused separate and distinct injuries, both could be “jointly and severally” liable to the injured driver, but with a twist. Each negligent driver would be 100% responsible for the driver’s “economic damages.” These are what I call “calculator damages,” such as past and future medical bills, lost wages, and anything else that can be tabulated.

However, as to damages for physical pain, suffering, and future pain and suffering, inability to enjoy activities and hobbies, etc, the negligent parties are only liable for their percentage share of those damages.

How would this work? If a jury determines that negligent driver No 1 is 70% responsible for the crash, and negligent driver No 2 is 30% responsible, they are liable for 70% and 30% of the injured person’s physical pain and disabilities.

As you can imagine, this whole area can get dicey or confusing, and takes effort to ferret out who caused what injuries. But at least the law accounts for both possibilities.

Tuesday, September 3, 2013

Docs Attach Patient's Intestine To Her Vagina--And Get Case Tossed!

I'm sure we all remember that childhood anatomy song, a snippet of which goes something like "well, the hip bone's connected to the thigh bone, the thigh bone's connected to the________" and so on and so on.

Recently, two surgeons in North Carolina mistakenly attached a woman's intestine to her vagina during a hysterectomy. As the song goes, the intestine is connected to the rectum, not the vagina. Or at least that's how the song SHOULD have been sung.

Needless to say, the patient, probably also familiar with that tune, sued the surgeons for medical negligence (also known as medical malpractice) for the botched surgery. You can read about it here.

Now here's where it gets weird. The trial judge actually threw out the case!! Why? Apparently, the patient's attorneys filed the lawsuit without a medical expert giving the opinion that a woman's intestines should not be attached to her vagina under any circumstances.

The surgeons' attorney apparently argued that, hey, this is a malpractice case and you need an expert to say that it's not OK to suture an intestine to a vagina, and since you don't have an expert, case dismissed.

And apparently the judge agreed, tossing the case. As you might expect, this one got appealed, and, thankfully, common sense re-entered the picture. The Court Of Appeals, perhaps aware of the words of Bob Dylan that "you don't need a weatherman to know which way the wind blows," adroitly noted that it’s "common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem."

But here’s the real teaching point about the difficulties, complexities, and unfairness of our medical malpractice laws. There are certain results in medicine that are just inherently wrong and preventable: the clamp left in the abdomen, the sponge or towel left under the lung, operating on the wrong limb, removing a non-cancerous breast by mistake. The list goes on, and I think it’s safe to add attaching intestines to a woman’s vagina to that list.

Yet, this case got thrown out and had to be appealed to be re-instated. Point? Many of our “tort reform” malpractice laws bend over backwards to make it increasingly more difficult for legitimate cases to make it through the legal system.

And if any medical person would respond by saying, “well, not so fast, these things can and do happen,” my response is I’m waiting for the scholarly medical article that touts the benefits or efficacy of attaching intestines to vaginas. Waiting patiently….right next to Linus in the pumpkin patch….