Monday, October 27, 2014

Follow The Money Trail....And You May Find Malpractice....

Recently a woman sued a Chicago area hospital for using improperly sterilized, dirty endoscopes that allegedly inflicted her and as many as 42 other patients with a nasty bacterial infection known as CRE (carbapenem-resistant Enterobacteriaceae).

This "superbug" is usually contracted in medical facilities, and can be fatal if it enters the bloodstream.

How did this happen? According to a recent article, "manual cleaning and high level disinfection" (whatever that is) failed to remove E-Coli and other bacteria.

Ewwww. Disgusting at a minimum that a used, unsterilized endoscope can find its way into numerous patients AND cause potentially fatal harm.

Despite the presence of the CRE bug in perhaps dozens of patients, the hospital claims there were no lapses of protocols. And despite there being no lapses of protocols, the hospital is now including gas sterilization of its endoscopes.

Now, I'm no expert in how to sterilize all the scopes that are used in volume fashion at a hospital or outpatient facility. But why is the hospital now including more elaborate (and presumably more effective) gas sterilization of its scopes? This is just a guess on my part, but I would suspect that gas sterilization is probably more expensive than manual cleaning, which was considered "good enough"....until this happened.

Bottom line: some "protocols" are more expensive than others. Whether the setting is a hospital or a nursing home, many times the ultimate decision on which policies and procedures to implement comes down to the almighty dollar.

Never forget:  most hospitals and nursing homes are just another form of a big business. Budgets and financials are just as important as other considerations. Although this is not a bad thing per se, when they cause safety shortcuts and cause patient harm, they shouldn't get a free pass from our civil justice system.

Friday, October 10, 2014

What If The Death Certificate Is Wrong?

The cause of death on the "official" death certificate read: "Intoxication." One small problem. The "intoxication" that led to the patient's hospitalization for a broken jaw in a one car accident occurred about 10 days earlier. After successful jaw surgery, which included wiring the jaw, the patient was resting comfortably and was soon to be weaned from the tracheostomy tube and ventilator, in preparation  for discharge.

Unfortunately, on post op day 10, a nurse dislodged the patient's trach tube while suctioning it. A cascade of medical errors followed, including the inability to re-insert the trach tube in the patient's trachea or "windpipe." Consequently, the patient suffocated and died.

A medical malpractice case followed. The issue was whether the hospital staff was negligent in dislodging the trach tube and/or failing to timely re-insert it in the patient's airway. All the medical experts in the case--even the doctors' and hospital's--agreed that the immediate cause of death was cardiopulmonary arrest due to oxygen deprivation.

Yet, we had this "official" death certificate that listed "intoxication"--10 days prior-- as the cause of death, which was dead wrong (pardon the pun). The question is: in a medical negligence or any other civil lawsuit, can the cause of death be tossed out or set aside under certain circumstances? Great question--glad you asked! The answer is YES.

In Ohio, the coroner’s factual determinations concerning the manner, mode, and cause of death as expressed in the coroner’s report and death certificate create a non- binding, rebuttable presumption of the actual cause of death, unless there is competent, credible evidence to the contrary. In other words, the coroner's findings are not set in stone, and can be rebutted if there is good evidence to the contrary.

The reason? Coroners, like any other profession, aren't infallible and don't always get it right. The law recognizes this. In our case, the coroner had apparently confused the immediate cause of death (the dislodged trach tube) and the remote cause of death (the car crash.) for reasons I'll never truly understand... 

The case above settled shortly before trial so the Court never ruled on our motion to toss the coroner's "intoxication" cause of death. But given the overwhelming expert testimony that the dislodged tube cut off the patient's oxygen supply, most likely the death certificate would have been inadmissible at trial.

Tuesday, September 23, 2014

"Are You A Bulldog Lawyer?"

This is a common question that people ask me at the initial client meeting. After all, what client does not want their lawyer to "fight" for their case? The primary source for this expectation has its roots in the vast wasteland known as television. Between law shows showing aggressive and over the top courtroom lawyer betrayals, and countless lawyer TV ads vowing to "fight for you" or to "make them pay," it is little wonder that people may expect that of the lawyer they hire.

But that question is the equivalent of eating cotton candy for dinner. Little caloric value, not fulfilling, and leaves you wanting for more, for lots of reasons.

After having been a personal injury attorney for 25 plus years, with the battle scars to prove it, you learn a few things. Being a "bulldog," without more, is like that cotton candy meal. I've seen and have gone up against so called "bulldog" lawyers who are long on bombast and hot air and short on common courtesy, civility, common sense, and legal acumen. They run roughshod through everyone--opposing counsel, witnesses, sometimes even the judge. Sometimes the trail of destruction they leave makes it difficult if not impossible to bring a case to an amicable resolution.

When your stock in trade as an attorney is fear, intimidation, yelling and screaming, and pushing and injecting personal emotions into any given situation, well good luck with that. It eventually implodes like an arsonist who sets the fire and leaves the scene, even if it gives the lawyer's client a temporary sugar high.

So what is a good set of criteria for choosing an attorney to help you solve any legal problem? In no particular order, competence should be high on your list. How do you measure a lawyer's competence?

First and foremost, ask around. You'll get more from simply asking trusted friends and colleagues than any useless lawyer ad or slick, self-laudatory materials left on your doorstep or mailbox two days after your crash.

Second, what kind of information can you acquire from your attorney or firm for your particular problem? Generally speaking, any written information the lawyer offers in the form of books or reports can be helpful in measuring competence, but you have to be careful here. I've seen law firms that have great looking websites and list their "significant cases,"when in reality they farmed the case out to another lawyer or firm, and are merely taking credit for the results of a case they did no heavy lifting on.

Third, you must ask about the attorney's actual experience in the courtroom if you have a personal injury or criminal case, for example. Here are a few simple questions to ask of any personal injury lawyer: when is the last time you tried an auto or medical negligence case to a jury? How many of these cases have you tried to a jury verdict in the last few years? You need to know this as your worst case scenario, and if your attorney has not seen the courtroom in years, think: paper tiger.

Finally, you need to gauge the attorney's passion for what he or she does and your case. Did the attorney take the time to talk to you in detail, or did you feel like a number or that your time was not really respected or valuable? More than anything else, what kind of vibe are you getting from the attorney? Realistic yet positive? Personable? Disinterested?  All the personality of a piece of wet cardboard?

And back to that bulldog thing. There is a time and a place for everything. Generally speaking, in the world of litigation, my prescription is simple: treat everyone like you would like to be treated. Simple decency, kindness, and common courtesy will get you more information than acting like a mad dog tearing through a meathouse. On rare occasions, a witness or a defendant or an expert will be so caustic or rude that they give you permission to take a more firm handed approach.

After all, any dog backed into a corner will know when and how to bite back.

Friday, August 22, 2014

Hospital Tube-Connection Mishaps...More Than a Mere "Oops..."

"The tube just came out. These things happen."

I'm sure thousands of families have been told this in hospitals when any sort of tube, catheter, or other medical device lost its connection with a patient.

A recent report, however, shows that this is frequently not something that "just happens." Rather, it appears to be a problem that is both underreported and largely preventable. According to The Joint Commission, which sets standards for accrediting hospitals, tube misconnections can have devastating consequences:

The New York Times reported on the death of a fetus and expectant mother after
a feeding tube was accidentally connected into the mother’s bloodstream. 6  In 34
various publications, 116 other case studies were found involving misconnections
directing enteral feeding solutions into IV lines. 7  These adverse events resulted in
21 deaths. It is believed that tubing misconnections are underreported; adverse
events related to tubing misconnections are sometimes not reported, especially
when the mistake does not result in harm to the patient, 1  and they are sometimes
reported under another category, such as a medication error. The risk for tubing
misconnection is high, considering that almost all patients admitted to the hospital
are likely to receive an IV. 8  This risk is also seen in other settings.   

Types of misconnections that have been reported to cause serious injury or death or the potential for both include:

  • Feeding tubes connected to IV's;  
  • Limb cuff inflation devices connected to IV's;
  • Epidural solutions connected to  Peripheral or central IV catheters;   
  • Epidural line connected to IV infusions;  
  • Bladder irrigation solution using primary IV tubing connected to  peripheral or central IV catheters;  
  • IV infusions connected to indwelling bladder or "foley"catheters;   
  • IV infusions connected to nasogastric (NG) tubes;   
  • Primary IV tube connected to blood products;  
  • Feeding tubes connected to a tracheostomy tube; or  
  • IV solutions administered via blood administration 

Why do so many tube misadventures occur in hospitals? Two major reasons include (1) health care providers going into "automatic" mode (I prefer to call it "auto pilot" syndrome) due to stress or fatigue, and (2) "spaghetti syndrome"---too many tubes and wires strewn in haphazard fashion. Both are the proverbial "accident waiting to happen."

As you can see, many of these causes are entirely preventable, which is why The ISO (International  Standardization Organization) is formulating new standards that will hopefully spurn hospitals to take measures to prevent tube misconnections from occurring.

Having litigated two misconnection cases, both resulting in death, I can attest to how easily they can be prevented, and how awful they were for a family to accept. Although from the list above some of these tubes and wires have fancy names, most all have one thing in common: they are frequently a loved one's lifeline. You don't need to be an Ivy League trained doctor to know that if you knock out a patient's lifeline, some really bad things can happen... 


Thursday, July 24, 2014

This Was Not A Seven Figure Settlement....But Satisfying Nevertheless...

Law firms and lawyers love to brag on websites about a lot of things.

Much of it is useless fluff ("experienced" or "aggressive"attorneys, whatever the hell that means) and some of it can even be quite misleading. Many of those "seven figure settlements" or verdicts a firm lists are not even the product of their own work or expertise. Many firms refer those cases out to another attorney or firm.

All that aside, today was not one of those "seven figure" days for me. In fact, today was a freebie for an elderly couple. Weeks ago their car got hit by a real gem of a nice guy who fled the scene. They weren't hurt but their car was totaled.

The driver was driving someone else's car, so there was a delay of a few weeks in getting the owner's insurance company to appraise the car and investigate the claim. In the meantime, the storage fees on the car exceeded $1,000, through no fault of the elderly couple.

This particular insurance company, who I have had consistently HORRIBLE dealings with, tells these nice folks: "we're only paying half of the storage bill since it's too much." They offered him $1200 on his car, and told him he could pay the rest of the storage bill out of the $1,200 offer.

They did this for one reason: they could. They figured they could strong arm these folks into caving in, because no lawyer would take their case over a $500 storage bill dispute.

They called me after an Internet search, and I told them to come in after hearing their story. I had an idea. I told them that if I call the adjuster on their behalf, it would probably go nowhere because the first thing out of his mouth would be "it's company policy," followed by "go ahead and sue if you want," figuring that no lawyer would do that over such a small amount.

So here's what I told them: "Go down to the local municipal court, take out a small claims petition, and bring it back. I'll help you fill it out and then take it back and file it. THEN I'll call the adjuster and my guess is that it will get worked out, since now they'll have to send a lawyer and an insurance rep to the hearing."

Almost a week later, I finally get a return call from a new adjuster. After haggling over a few facts, I told him that my clients sued their insured and if they did not want to pay the storage they could tell the magistrate at the hearing why a nice elderly couple should have to incur any storage fees for a hit and run driver and a delayed insurance investigation that led to the high storage bill.

And I told them I would be at the hearing representing these folks for free.

Next day, it's the adjuster on the phone: "we'll pay the storage bill."

Happy ending. Clients got what they wanted, and weren't out anything in the process.

I made no fee but made new friends. I guess it's a good sign that after 25 years, what happened to some nice folks still ticks me off enough to help with a practical solution to the problem. No burnout yet. Still like what I do.

It's certainly not headline grabbing. And it won't pay any overhead. But it sure is satisfying as hell. Call it a "zero figure settlement." Now there's some real bragging.....

Wednesday, July 9, 2014

Bulges, Herniations, and Extrusions, Oh My! Injured Spinal Discs After A Car Crash (And What It All Means)

  By Brian R Wilson, Esq.

 Car collisions can frequently cause injuries to the lumbar and cervical spine. When the spinal discs or "shock absorbers" of the spine are injured, it can mean pain, immobility, numbness down a limb, and even require therapy and surgery. Anyone who's ever had some sort of spinal disc injury can attest to the pain they can cause.

But what's the difference between a bulging, herniated, extruded, or torn spinal disc? In a recent trial I had in an auto collision case, a local chiropractor did an excellent job of explaining the difference between the various forms of injuries to spinal discs, which you can read below:                                                                

16   Okay.  Thank you.  So have we covered all  

17         the fractures then?                                

18   A.    I believe so.                                      

19   Q.    All right.  Let's move to other injuries or        

20         conditions that you discovered in  ______'s  

21         spine.                                            

22   A.    Okay.  The --                                      

23   Q.    Go ahead.                                          

24   A.    We did a standard orthopaedic neurological        

25         examination when she first entered our office.    

 1         This examination is designed to allow me to provide

 2         a working diagnosis, which is what the problem is,

 3         what's generating the pain, what's the pain        

 4         generator.  And on this examination we saw greatly

 5         decreased range of motion in the lumbar spine and  

 6         in the cervical spine, pain on motion, orthopaedic

 7         tests, which were designed to let me know, again,  

 8         how severe the injury is, is it just a pulled      

 9         muscle, a strain/sprain, a pinched nerve.  Some of

10         them were -- she was in too much pain to perform  

11         them.  There were two orthopaedic tests that led me

12         to believe that she may have a herniated disc in  

13         her lumbar spine.  Specifically Kemp's test and    

14         Valsalva's test.                                  

15                 Along with that, she was experiencing      

16         radiating leg pain.  Because of those findings, I  

17         ordered immediately the MRI, and the MRI did show,

18         along with the pelvis fracture, it showed herniated

19         discs in the lumbar spine level.  The herniated    

20         discs were classified as extruded in nature and    

21         they were at L3/L4, L4/L5 and L5/S1.              

22   Q.    Okay.  Could you show us on the model.            

23   A.    Yes.                                              

24   Q.    And then explain to us what an extruded herniated  

25         disc is.                                          

 1   A.    Okay.  Your discs are the shock absorbers in      

 2         between each vertebrae.  They're designed for low  

 3         transfer and for support.  They're made of mostly  

 4         water.  They're soft tissue.  A herniated disc is  

 5         when enough pressure is on that, that it will want

 6         to come out.  In layman's term, a slipped disc.  A

 7         bulging disc is the beginnings of a herniated disc.

 8         The red on this picture is a herniated disc, on    

 9         this model, if you can see that.                  

10   Q.    Okay.                                              

11   A.    On this model here, this might be a better model,  

12         the red bulging out here is a herniated disc.      

13   Q.    All right.                                        

14   A.    Okay.  The danger is, it will come out really close

15         to this nerve and it will pinch.                  

16   Q.    And it will break off?                            

17   A.    It will break off.  A nerve's like overcooked      

18         spaghetti in real life.  It only takes the weight  

19         of a quarter to cause 60% nerve malfunction.  It  

20         doesn't take much weight.  So an extruded disc is a

21         disc that is bulging even further than most, and --

22         can I use my board now?                            

23   Q.    Absolutely.                                        

24   A.    This would be a good time to explain this.        

25                 MR. WILSON:  Let's go off the video.      

 1              (Off the record discussion was held)          

 2   A.    Okay.  On disc, if we have a normal disc, looking  

 3         at it from top to bottom, and that would be like  

 4         this, (Indicating).  If I'm looking at this        

 5         vertebra like this, there's the disc, this is the  

 6         disc.  A normal disc would have no type of bulge or

 7         deviation around there.  It would be nice and it  

 8         would be smooth and round.  If we have a bulge,    

 9         then we're going to start to see this right --    

10         right there, and a radiologist will measure this to

11         determine if it's a bulge or if it's actually a    

12         true herniation.  So this is a bulging disc.      

13                 Then as we get worse, we have what's called

14         a protruded disc.  Now the bulge has grown more,  

15         and there's a measurement from here to here.      

16         (Indicating).  They measure how long it is here and

17         how deep it is here, and then that measurement    

18         tells them if it's a protruded disc or not.  That's

19         the first stage of a herniated disc, okay.  You    

20         would have a nucleus in the middle, and it's      

21         wanting to come out, it's like a jelly-filled      

22         doughnut, and it's pushing, it's pushing, it's    

23         pushing out.  There's our nucleus.                

24                 Then the next disc you would have would be

25         the extruded disc, and on the extruded disc, the  

 1         nuclear material pushes out, and it actually breaks

 2         the annular fibers that holds that nucleus in      

 3         there.  There's a tear in the fibers, which her MRI

 4         report also said annular tear, so it fits right    

 5         along with an extruded disc.  So this is a        

 6         protruded disc, this is an extruded disc.  Then as

 7         it gets worse, you get a migrating disc.  That    

 8         extrusion will want to float or want to migrate up

 9         and down the spinal column, okay.  And that's      

10         nuclear material.  The nucleus, like that.        

11         (Indicating).  Then the next one, which is the    

12         worst of the worst, is you have a migrating disc  

13         that becomes a fragment.  It broke off in there.  

14         Okay.  This is almost always surgery right here,  

15         okay.                                              

16                 So out of all these discs right in here, we

17         know through studies that this extruded disc is    

18         kind of special because it takes a trauma to cause

19         it.  Studies show that a majority of patients might

20         have a herniated disc and not know it and live    

21         asymptomatically.  That's true for a protruded    

22         disc, but for an extruded disc, when there's a    

23         annular tear, there's almost always over 90%, 95%  

24         chance that there was a trauma that happened that  

25         caused it, meaning a person will know if something

 1         happened for that to occur.  They weren't just    

 2         living with it and then all of a sudden it creeps  

 3         up and comes on when they bend or twist the wrong  

 4         way.  So these are the different types of herniated

 5         discs.  And our patient  had three of these, at

 6         L3/L4, L4/L5 and L5/S1 on the MRI.                

 7   Q.    Thank you.                                        

 8   A.    Thank you.                                        

 9   Q.    Let's return you to your seat so you don't have to

10         stand there.                                      

11              (Off the record discussion was held)          

12   Q.    Generally speaking, what kind of problems can an  

13         extruded disc create in patients?                  

14   A.    Well, it depends on how much pressure's on the    

15         nerve root.  If there's a lot of pressure on the  

16         nerve root, it could be anything from just slight  

17         numbness or tingling down a leg or down an arm, to

18         loss of bowels control, a loss of bladder control,

19         loss of leg function, loss of muscle function.  It

20         all depends on how much pressure is on that nerve.

21         It only takes the weight of a quarter of pressure  

22         to cause 60% nerve malfunction.  So it's important

23         to try to get that disc off as soon and as fast as

24         possible and to start the healing process as fast  

25         as possible to make the strongest repair, strongest

 1         scar formation, so that it won't do that.  That's  

 2         why we ordered the MRI as soon as we did.

Tuesday, July 8, 2014

Does A Misdiagnosis Mean That You Have A Viable Ohio Medical Malpractice Case?

Not necessarily.  First, let’s start with some basics.  A misdiagnosis MAY mean that a doctor was negligent.

Example:  You are involved in a single car crash.  You’re transported to the local ER, where an ER doctor performs a physical examination, and notes severe tenderness of your cervical spine.  An x-ray of your cervical spine is ordered and read by a radiologist, who reports that there are no fractures.  Her diagnosis is a “cervical sprain.”

You are released from the ER, but your pain is getting worse.  In fact, it’s to the point that you can barely move your neck.  You see a local orthopaedic surgeon two weeks later, who takes another x-ray, and, minutes later bursts into the room and says:

“You need to go to the hospital immediately.  You have a broken neck!”

The orthopaedic surgeon eventually reviews the original ER x-rays and confirms that the fracture was indeed present on the original x-ray.  It was there all along.  The radiologist misread the x-ray. 


Just as a stool has three legs, you need to prove 3 things in any medical negligence claim: (1) negligence that (2) directly caused (3) losses and harms, known as "damages." Unless you have all three, no winnable case. 

 Was the radiologist negligent in misreading the x-ray?  Yes. The 1st leg of the stool is secure. Does this mean you have a viable medical malpractice case for the misdiagnosis of your broken neck? It depends.  Let’s add to the fact pattern.  Assume that in the two week period between your discharge from the ER and the discovery of your broken neck, the fracture has become “displaced.”  Definition:  the fracture has shifted or moved from its original position, which is now potentially life-threatening because it may occlude or pinch the spinal cord.

Why did your neck fracture move or become displaced?  Because of the lack of a hard neck collar that should have been secured to your neck in the ER, which, at a minimum, is required to immobilize a broken neck.

Because your fracture is now slipped/moved/ displaced, there is only 1 option:  surgery to repair the fracture, followed by one of the most dreaded post-operative devices known to patients:  the “halo brace.”  This medieval  torture device is screwed into your head for weeks after surgery to make sure the fracture maintains proper alignment, which promotes proper healing.

The negligence and delay in properly diagnosing the neck fracture directly caused your broken neck  to deteriorate. The 2nd leg of the stool---direct causation or cause and effect--is met. The harms and losses directly caused by the negligence and delay--the surgery, halo brace, and other assorted miseries---secure the 3rd leg of the stool--damages.

Now, let’s change things a bit.and assume the same misdiagnosis and two week delay in diagnosing your neck fracture, but with a critical difference.  Instead of ordering you to the hospital, your orthopaedic doctor tells you:

“I have bad news and good news.  The bad news is that your neck is broken. The good news is that the fracture is still intact, and you can be fixed with wearing a hard neck collar.  We don’t have to operate.”

Is the first leg of the stool still present?  Of course – you were negligently discharged from the ER with a broken neck!

However, the two week delay in diagnosing your broken neck did not make a difference in your outcome, nor did it make matters worse.  Had they diagnosed your neck fracture in the ER and placed a hard neck collar on your neck, you’d still be in the same boat from a healing standpoint because the nature of the fracture did not change.

This is a classic case of negligence without the 2nd leg of the stool:  direct causation between the misdiagnosis/two week delay and your ultimate outcome.

Does it mean the radiologist gets a free pass for misreading your x-ray in the ER? Probably.  Fair?  Not really, but that’s Ohio law.

These two alternating scenarios prove the point that each medical malpractice claim is unique, and does not usually lend itself to easy, black and white answers.

Here's the takeaway: with  few notable exceptions (like cutting off the wrong leg or leaving a large towel inside a body cavity after surgery), any “medical malpractice attorney” who can tell you after a 10 minute phone conversation that you have “a good case” is probably smoking something. Think about that if you're scouring the Yellow Pages or The Internet for "aggressive" or "experienced" medical malpractice attorneys... 

Monday, July 7, 2014

Will You Get Full Compensation In Your Ohio Personal Injury Case For Your Permanent Injury?

Before 2005, yes. After 2005, maybe not. Why was 2005 a watershed year on this issue?

Two words: "tort reform." What's that, you say? In 2005, The Ohio Legislature passed laws or "caps on damages" to limit what you can recover in personal injury lawsuits, commonly known as "tort reform." How do these limits work? An example hopefully brings this to light.

Let's say an impaired or fatigued truck driver is in violation of the federal motor carrier hours of service rules (the 14-hour driving window limit, 11-hour driving limit, or the 60-hour/7-day and 70-hour/8-day duty limits), and he falls asleep at the wheel, crashing his 82,000 rig into the back of your car.

The good news is that you survived. The bad news is that you broke 11 ribs and your leg, in the form of a tibia-fibula fracture. You also sustained a closed head injury. You spent a month in the hospital, including placement of a metal rod in your leg in an effort to reconstruct what's left of your tibia and fibula.

You missed a year of work, lost $50,000 in wages, and incurred $200,000 in medical bills. After a year of therapy, you no longer walk with a profound limp, but you have severe pain in your leg daily with activity. Your doctor has told you that arthritis has set in and your leg function and pain is never going to improve. Your leg is so bad that you can't even exercise with it or walk on it for any lengthy period of time. All your hobbies--golf, hiking, bicycling--gone. Finished.

And you're only 40, so you have at least 30-40 more years left on a leg that is permanently injured and will never be the same.

Now let's hit the re-wind button to before 2005. Before tort reform caps were passed, you would have been entitled to recover for the permanent injuries and limitations to your leg as part of your pain and suffering with no limitations. If, for example, a jury valued your past and future pain and suffering for the rest of your life at $500,000, that is what you would have received.

After 2005, The Ohio Legislature arbitrarily capped your compensation for pain and suffering to a sliding scale of $250,000 not to exceed $350,000 maximum for ANY permanent injury unless you meet one of 3 exceptions to the cap:

  • loss of a "bodily organ system";
  • a permanent and substantial physical deformity; or
  • inability to independently care for one's self in every day activities of daily living.

In the example above, the only possible exception to the cap that MIGHT apply to your bum leg is the "permanent and substantial physical deformity." But here's what insurance companies in personal injury cases are at  mediation and before judges: that injuries like these do not rise to the level of "permanent and substantial physical deformities," and therefore the caps/limits apply.

Ultimately, a jury would have to decide whether any permanent injury meets any of the exceptions to the $250-350,000 caps on pain and suffering. But insurance companies are using the caps/limits as leverage for making lesser offers than they would otherwise be making if the Legislature in 2005 didn't hand them this uncalled for club to beat over the heads of legitimately injured Ohioans.

Why did The Ohio Legislature pass these caps? Simple. The business community, spearheaded by The Chamber of Commerce, asked for them. A simple case of ask and ye shall receive. The caps were "sold" to the public as bringing "predictability" to the legal system to keep business costs down AND create jobs, like a magic elixir. That's right--limiting what you can recover for a bum leg at the hands of an impaired or fatigued driver was supposed to create Ohio jobs...

Somebody queue in the cartoon laugh track on that one......

Thursday, June 5, 2014

Will My Personal Injury Case Settle Out Of Court?

This is one of the more frequently asked questions I hear during the initial client interview. It's a major concern for my clients, because most folks want to go through a trial like they want a root canal.

Settlements "out of court" are always preferred, but it only makes sense if the offer truly reflects a fair trade value for all the hardships an auto or motorcycle accident victim endures. The good news is that in these type cases, the overwhelming majority will settle without having to go to trial.

But what about the remaining 10%? How does a personal injury attorney know which cases will require filing a lawsuit and possibly going the distance, in the form of a jury trial? An example may shed some light on this.

My client was involved in a bad broadside crash. She had numerous fractures and a few herniated discs. She spent 6 months in rigorous rehab trying to recover from her injuries. The at fault party's insurance company was notorious for making lousy offers in these type cases. Knowing this, I informed her at the initial meeting that the odds were fairly good that we'd have to file a lawsuit because I anticipated a less than optimal offer.

True to form, the insurance company made a lousy offer. In fact, it was insulting. So we immediately filed a lawsuit. We took some depositions and then attended a court ordered mediation. A mediation is an informal process where the parties meet with a mediator, who tries to see if the parties can agree on a fair compromise and settle the case. The adjuster for the at fault party's insurance company was there, which is typical.

The mediation lasted 28 minutes. The insurance company increased it's offer by a whopping $750 from its previous incredibly stupid and lousy offer. We were headed for trial.

We went to trial, and the jury returned a verdict that SUBSTANTIALLY beat the insurance company's last offer. Why is this important? Because when you are choosing an attorney to represent you, you need to know there are many personal injury firms that will NEVER go to trial, and probably couldn't even find the courtroom with Google Maps. Many are what I call "settlement mills," meaning they extract the highest offer from the insurance company, and convince or even strong arm the client to accept it, even if the offer stinks.

These firms either don't want to be bothered with the increased work associated with going to trial, or are afraid to try a case. And the dirty secret is that many "personal injury" firms boast that they are "aggressive" or will "fight" for their clients. That's why the majority of attorney advertising is about as useless as eating a meal consisting of cotton candy with a side of circus peanuts. Little to no caloric value or substance, and no ability for the client to decipher whether the firm they've hired are paper tigers, or can or will actually go the distance if necessary.

There's a saying that applies to this business: "You gotta know when to hold em and when to fold em." What you don't want is an attorney that always folds them, no matter what, and does a real disservice to the client.  


Friday, May 23, 2014

Do You NEED A Personal Injury Attorney To Settle Your Claim? Maybe Not (But You May WANT One...)

Recently I decided to take on the task of fixing a running toilet. In the interest of full disclosure, being handy man around the house is not one of my strong suits.

General grunt labor--mowing, trimming, mulching, gardening? I'm all in and I'll outwork anyone. Home repair--electrical, plumbing, fiddling with small engines and appliances--not so much. My two general rules of home repair are (1) force and jam everything; and (2) if it breaks it needed to be replaced anyway.

And so it was with my feeble attempt at fixing the toilet. After watching a few YouTube videos, I thought I was up to the task. Long story short, after about 2 hours, I said to my wife--"to hell with it" and called the plumber, and $158 later, all was well with the toilet. I'd like to think that, eventually, I could have cracked the toilet code without cracking the toilet, but I also realized that I would have spent way too much time fiddling with a toilet on a weekend (and, after all, the walleye are starting to bite), with no guarantee that I could have fixed it.

Lesson: I probably NEEDED a plumber to complete the task. Personal injury cases are no different. Frequently, you'll NEED one to help you, particularly if you've had any kind of follow up treatment after your collision, such as continued visits to your doctor or chiropractor, physical therapy, diagnostic tests, etc. This is where it can get complicated when you go it alone with the at fault insurance company's adjuster.

There's a TON of mistakes you can make without even knowing it, as I have written about in our free book: "Your Ohio Accident: Sorting Through The Insurance Maze." But what if your auto accident injury claim is relatively straightforward? What if the adjuster promised to "work with you" and you're inclined to give it a shot on your own?

Recently I met with a man whose 18 year old son was in a collision. He went to the ER, had a few follow up office visits with the family doctor, and a brief stint of physical therapy. He was inclined to try to resolve his son's claim on his own. I explained some of the issues he faced, and answered some practical questions he had about who was going to pay the medical bills, the release, etc.

There were a few things I pointed out that he hadn't thought through. At the end of the meeting, I told him that a good number of my clients realize they don't have a significant injury claim, but they're tired of dealing with all the paperwork, the phone calls, and worry about not tying up loose ends that may come back to bite them after they settle the case. They are happy to turn the whole file over to me with the trust and knowledge that the claim will be competently negotiated and that all straggler issues, like accounting for, negotiating, and paying all outstanding bills and reimbursement and subrogation claims, will be finalized.

I left the decision to him. Two hours later he called and said: "I want you to handle it and get it off my back."
For him, hiring an attorney for his son was more a case of WANT rather than a matter of NEED. It was more about washing his hands of the aggravation than worrying about the value of his son's injury claim.

I told him I can relate to that, just like my call to the plumber.....


Monday, May 5, 2014

Why We Do What We Do....

Over the weekend I received the nicest thank you from the son of an elderly couple I represented. His Mom and Dad were involved in an auto accident, and the son contacted me after doing an Internet search.

 Long story short, Mom was injured, had a fair amount of treatment, and the family had been dealing on their own with the insurance company for months. After getting mixed messages as to the adjuster's intention to settle the claim on fair terms, they called me.

It was a straightforward case and after gathering all the medical records and evaluating the claim with the clients, we were able to successfully resolve the claim with the at fault driver's insurance company.  It wasn't a "big case" as that term goes.

But no matter the case, the real problem accident victims face when dealing with the insurance company on their own is the lack of a frame of reference as to whether what they're being told or offered is fairly accurate of a load of nonsense. They have no measuring stick with which to gauge what they're being told. Most folks who are injured after a crash  are concerned that their bills and other out of pocket losses will be taken care of, and  they are treated fairly by the insurance company with a decent offer. And they don't want any loose ends to crop up after the case is resolved.

These goals are well within reach even in cases not involving serious or catastrophic injury. The son's heartfelt thank you for helping his elderly parents meant much more to me than the fee that was generated.
Thank you's like that make Monday mornings a lot more easy to take.....!

Wednesday, April 16, 2014

Don't Just Stand There--Take A Picture!

If a picture is worth a thousand words, a good picture in a personal injury claim might be worth thousands of dollars in certain situations. A recent call from someone injured due to a collapsed  residential structure reminded  me of the importance of taking good pictures after an injury.

A few years back I resolved a case on behalf of a tradesman who fell through a set of poorly built temporary stairs at a residential building site. The treads collapsed as he was walking down the stairs. They were nailed to the stringer (the sides of the step assembly) without support blocks underneath the treads, so that the treads were supported only by nails driven through the side of the stringers and into the treads.

Not a good design and not safe. Consequently, he fell 20 feet down the stairwell and onto the basement floor, shattering his leg. Now here's the interesting part. He was working alone (it was a weekend), and was discovered by other tradesmen who arrived at the scene. They quickly arranged for him to be taken to the hospital.

Thankfully, he had called his wife and told her to send someone to pick up his tools. That person took pictures of the collapsed steps and the sheared treads. These pictures proved to be invaluable because the contractor replaced the stair assembly, took no pictures, and got rid of the evidence.

The pictures of the stair remnants allowed an architect to reconstruct what caused the stairs to collapse and give an opinion at trial that they were negligently constructed, which resulted in a successful resolution of the case. But for those pictures, the case would have been more difficult if not impossible to win.

Particularly in cases involving injury at a premises or work site, documenting the scene with pictures can preserve it for later analysis. And it's naive to presume that the owner or contractor will preserve any incriminating evidence. What's more, in auto accident cases, all too often local law enforcement will fail to take pictures of vital evidence of the vehicles or the scene.

In this age of even the cheapest phones with a camera function, don't be afraid to use it! It may end up being the breakthrough evidence in your injury claim.


Wednesday, March 26, 2014

Client's Hard Work And Honesty Brings Good Jury Verdict

Last week I tried a personal injury/auto accident case to a Stark County jury. There's an important lesson from that trial that anyone injured in an accident case should know.

Long story short, my client was broadsided in a bad crash. She sustained 4 broken ribs, a fracture to her sacrum (which is actually part of the pelvis), and three herniated discs in her lumbar spine. Bad injuries, many of which no therapy could help--only time and immobility.

Despite being really banged up, she did not "milk" her claim and try to pad her losses and run up tons of medical bills. She made the choice to return to her supervisor's job 6 days after the crash, reasoning that since she was in a lot of pain no matter what she did, she might as well return to work.

Her next 6 months were chock full of incredible pain with breathing, sitting, standing, sleeping--essentially everything was affected by all of her fractures.

She gutted it out with 40 grueling visits to her chiropractor, family and orthopaedic doctor, and lots of physical therapy and massotherapy to heal her herniated discs. She never missed an appointment, and scheduled all of her medical visits around her work schedule, taking some 75 hours of personal time from work.

She got her life back in about 6 months, when her chiropractor testified that he anticipated initially it would take 8-10 months of rehab for her to get better. Basically, she did everything she could to MINIMIZE her losses. Her healthy lifestyle before the crash was important to her and she was determined to get back to it as soon as possible.

The insurance company for the negligent driver made an incredibly lousy offer before trial, making the decision to go to trial easy. They no doubt were relying on the fact that she healed rather quickly, so the case was no big deal.

The jury did not see it that way. They returned a verdict that substantially beat the insurance company's last offer. They did this not even knowing any information about the insurance company's last offer, since negotiations between the parties are inadmissible in Ohio and almost all other states.

Bottom line: the jury admired her fortitude and laser like focus to get better and get on with her life despite all of her injuries. They did not penalize her for healing in less time than the average person.

The reason for their fair verdict was simple in my opinion. Juries often come into a case skeptical of the person bringing a lawsuit and his or her attorney, and not without some surface level justification for their skepticism. After all, they hear stories of people trying to "cash in" from a personal injury lawsuit, read about the occasional goofball frivolous lawsuit, and get bombarded by offensive solicitations in their mailboxes after a minor fender bender.

The best antibiotic for this skepticism is an honest, hard working, determined client who is simply doing everything she can do to get better.

She made my job a lot easier, and it's proof that juries will often do the right thing when they recognize human decency and effort.

Monday, March 10, 2014

My State Passed Damage "Caps"--How Do They Apply To My Injury Claim?

I got this question from an audience member at a recent speaking engagement. It was a good question, simply because most people don't realize that Ohio, like 32 other states, passed limits or "caps" on what Ohioans can recover in a wide variety of injury lawsuits.

Let's set aside the damage caps The Ohio legislature passed for medical negligence or malpractice cases. Believe it or not, they are different than the damage caps passed in OTHER personal injury lawsuits, like auto accidents, defective products, and injuries to patrons in stores, for example. I'll leave the medical malpractice damage caps for another post, so stay tuned...


If you're injured by a negligent motorist, for example, you can collect your lost wages, medical bills, and other "tangible" items of damage (the things we can add with a calculator) at 100%--no limits there. But for your "intangible" losses--the things we all hold dear and what I refer to as "human losses," Ohio law limits what you can recover.

These intangibles would include the physical pain and disability associated with fractures, surgeries, loads of therapy, loss of hobbies, and the countless other things you love, like volunteering, babysitting your grand kids, etc. You know--the things that bring you joy and pleasure in this world.

The cap consists of your medical bills and other calculator damages plus $250,000 or 3 times your "calculator" damages not to exceed $350, 000--whichever is LESS. This cap applies even if you have a permanent, chronic injury because of someone else's carelessness.

The only exceptions to this cap are (1) a permanent and substantial physical deformity; (2) loss of a limb; (3) loss of a "bodily organ system;" or (4) a permanent physical injury that prevents a person from independently taking care of one's self in every day activities of life.

Bottom line: if a drunk or texting driver smashes you, causing numerous fractures, and you don't meet one of those 4 exceptions, you're limited to either $250,000 or $350,000 plus your calculator damages.

Who pushed to pass these laws? Insurance companies. Why did they want them? To limit what they have to pay in personal injury cases. They argued that limiting payouts on cases like this was good for the economy and good for business, which would create a "good business climate" and therefore increased jobs.

These laws were passed in 2005. They traded your misery and limping around on a bum leg due to a careless drunk driver for a "good business climate."

So it's fair to ask almost a decade later: Where are all these jobs that were promised? What did we Ohioans get in exchange for limiting what insurance companies pay for texting drivers who maim motorists?

It's really hard to explain this to clients faced with these caps in their cases when they were simply minding their own business and got plowed by an irresponsible driver. It's even harder for them to accept these arbitrary limits when I explain to them that their state representative (whom they voted for) happily endorsed and voted for this law....

Sunday, March 2, 2014


It doesn't happen frequently, but occasionally the negligent driver who injured you in a crash dies before your claim is settled. This is a recurring scenario with elderly drivers.

When this happens, the insurance company for the driver is still on the hook for the injuries caused by their deceased insured. Occasionally, however, the insurance company may not know their insured driver died, particularly if that person's death occurs well after the crash for reasons unrelated to the crash.

And you may not know it either.

If you are trying to resolve your injury claim on your own, and you are fast approaching the expiration of your two year statute of limitations, this may be a real problem.

Why? In Ohio, you cannot sue a dead person. You have to sue that person's estate. If you are unaware that the negligent driver has died, and wait until the last minute to hire an attorney, you risk letting your statute of limitations expire if you sue a deceased person rather than his estate, only to find out afterwards that the negligent driver is now deceased.

But what if no estate has been opened on behalf of the deceased driver? Ohio law allows your personal injury attorney to open an estate on behalf of the deceased negligent driver in order to sue the estate and properly preserve our injury claim. If this is done timely and correctly, the deceased person's insurance company will defend the claim, and coverage under the deceased person's policy will be preserved.

This can get complicated and it can take some time to properly open the estate, so the last thing you want to do is wait until a few days before your two year statute of limitations is about to expire before hiring a personal injury attorney to represent you.

A word to the wise if you've been injured by an elderly driver.      

Wednesday, February 26, 2014

The Hospital Money Grab Immediately After Your Ohio Auto Accident

If  you've been in a recent Ohio car crash, there's a money grab you need to know about. It's a race by hospitals to bill your auto insurance medical payments coverage and avoid billing your health insurance at all costs.

Here's how it works. After your crash, you may be taken to or visit your local hospital ER for medical treatment. Within minutes of your arrival, you'll be asked for insurance information, and some "papers to sign." You give them your health insurance information. They also ask for your auto insurance information, because your injuries are collision related. Most people who have auto insurance also have "medical payments coverage," which will pay medical bills that are crash related, up to the limits of that coverage--usually $1,000 or $5,000 (which is what most people carry).

Occasionally, you may be asked to sign an "assignment" or other similar document authorizing the hospital to bill your auto insurance company directly. Or, this document may require you to pay the hospital bills directly out of any possible future settlement you receive with the responsible driver's insurance company.

Never mind the fact that you've been banged up or injured or woozy from medications and probably had no idea what you were signing even if you had your wits about you.

Why is your hospital trying to avoid billing your health insurance company and instead trying to get payment from your auto insurance company or out of your settlement?

The reason is simple: $$$$$. Big health insurance companies typically enter into "network" agreements with medical providers like hospitals and doctors. These agreements limit what hospitals are paid for various services. Example: On a hypothetical $2000 hospital bill, the patient's health insurer might pay $500 as payment in full. The hospital might still bill you for any co-pays you owe or deductibles you've not met under your health insurance plan, but that's it. The hospital is stuck with what your health insurance pays.

Your auto insurance might be a bit more generous by paying a higher amount for that same $2,000 bill. It might pay $1,200 or $1,400 or even pay it in full. So, for a few hundred months more, the hospital will try to avoid billing your health insurance at all costs, even though they are in the health insurance company's network and despite the fact that your health insurer covers auto accident related bills.

Pure and simple, hospitals are looking for "greener" pastures for payment of their bills (pun intended). What can you do? One thing you can do is submit the bills to your health insurer and insist that it pay the bills. If you have auto insurance med pay, it should serve as a backup to what health insurance doesn't cover. But don't bother asking the nice account manager at the hospital to submit the bills to your health insurance. Most likely, you'll be told: (1) they are required to bill your auto insurance; (2) they're not allowed to bill your health insurance; or (3) you signed papers authorizing them to directly bill your auto insurance.

Keeping track of this race and untangling it can get really complicated, especially as time goes on. More often than not, you will bang your head against the wall, and eventually call a personal injury attorney like me to sort out the mess.

But if you wait too long, it may mean money going right in the hospital's pocket and right out of yours.


Thursday, February 6, 2014


When I ask clients (typically at the first client meeting) what kind of auto insurance coverage they have, the response is almost always: “I’ve got full coverage.”

Or at least they thought they did.

A recent case – Robson v. Cadd Agency – points out an all too familiar scenario when folks attempt to buy auto insurance.  It goes something like this.  Purchasers tell their agent they want a “full coverage” policy.

Agent then gets some quotes for some policies.  So far, so good.  But here is where things start to break down.  Most purchasers of insurance don’t really know what a “full coverage” policy means.

At a minimum, it includes liability coverage, which covers you if you get sued.  But does it include the most valuable coverage you can buy – uninsured and underinsured motorists (UM/UIM) coverage – which protects you and your family if clobbered by a driver with no insurance or low limits of liability insurance?

Does it include medical payments coverage?  Collision coverage?  Rental coverage?  Does the policy cover your family members living in your household?  Does it prohibit a spouse or children from making a claim for injuries if injured due to the driving negligence of another spouse or child?  Does it cover your injuries if you’re smashed by a drunk driver while driving your company car?

Bottom line:  There is no definition in the insurance industry for what constitutes a “full coverage” auto policy.  It is a useless, garbage term that means NOTHING!

In the Robson case, a business owner asked her agent for a “full coverage” commercial auto policy for a dump truck.  The owner claimed she insisted on having UM/UIM coverage.  What she got was an auto policy that did not include UM/UIM coverage. 

You can guess the rest:  A collision with an underinsured driver and injuries to the dump truck driver.  When a claim was initiated for benefits under the UIM policy, it was denied.  The agent claimed that the owner didn’t want UM/UIM coverage after all, which the owner denied.

A classic “she said/he said” situation.  And a lawsuit.  The larger point here is that the model for buying and selling auto insurance is a broken one, replete with misunderstandings and misinformation.

It is a model driven by price, and purchasers essentially have little to no idea what they’re buying and what all the fine print means . . . until they’re clobbered in a crash.

And, oh, by the way – under Ohio law, purchasers have a duty to read and understand their insurance policy!  This is the most ridiculous fallacy of all.  Just try to sit down and read AND understand your auto policy without pulling out your hair or falling asleep.

Insurance companies have NO interest in educating you as to what you are actually buying, and neither do many agents.  More often than not, it’s all about “saving you money” or “saving 15% on your car insurance” and all those other useless slogans.

The only way to fight back and buy the protection you deserve is to educate yourself.  That’s why we wrote, “Fully Exposed:  How Insurance Companies are Stripping Your Auto Policy.”  It’s a quick read about many of the mistakes people make when buying auto insurance, through no fault of their own.

If you don’t properly arm yourself, it’s like brining a knife to a gunfight.  And, in the case of the insurance industry, you’re facing a howitzer. 

The book is available for free on our website.

Sunday, January 26, 2014

How Should We Fight Off The Ambulance Chasers?

It's an ever recurring scenario after you've been involved in an auto collision. As Radar in the hit series M*A*S*H* used to yell: "INCOMING!" Within a few days, here come the solicitation letters, DVD's, glossy brochures, "books" delivered to your door. And now texts from so called "injury help centers," which are buffer groups that are trying to funnel injury victims to certain medical providers and attorneys.

If you search this blog you'll see that I have railed against these practices as the worst thing to happen to our profession ever. It has been our ill fated version of "Pickett's Charge," and it has been slaughtering and maiming the already fragile reputation of personal injury attorneys for years.

Until recently, it appeared that texting accident victims was the next shiny object for the solicitation crowd in a race to the bottom to sign up clients. But now it appears there is a new twist: Some firms are now contacting accident victims who've already hired another attorney or firm to represent them!

What I suspect is happening is these firms are offering to represent the client for a lower contingent fee in an attempt to lure the client to them and away from their original attorney.

The response of personal injury attorneys who engage in none of this crap has been predictable. "Client stealing" is one of the more G rated accusations some of my colleagues have thrown out. I don't disagree. But I have a different take, and a few rules for anyone who might consider hiring us for their personal injury case:

1. If you hire us, you're free to leave and discharge us at any time. More than the terms of the contract, the attorney-client relationship is one of feel. It is one of trust and having a comfort level with your attorney. If it doesn't feel right or like a good fit, then maybe it isn't.

2. If you hire us and then receive calls from other law firms, we would expect the courtesy of a phone call to us, discussing what you were told and by whom.

3. If you hire us, only to jump to another firm days or weeks later for a lower rate, I wish you all the best with your new best buds. If you are that fickle and willing to get rid of us at the drop of a hat AND violate Rule No 2., we were probably not meant for each other anyway.

We've been handling personal injury cases for 25 years now. We don't solicit anyone to be their lawyers and never will. 90% of our business is word of mouth (and we know this because we keep track). We don't have a revolving door at our entrance. We have no fancy jingles and slick phone numbers.

Somehow, our phone still manages to ring anyway....


Wednesday, January 22, 2014

"I Was Not Wearing My Seat Belt At The Time Of The Crash--Can They Use That Against Me In My Personal Injury Claim?"

"Were you wearing your seat belt at the time of the crash?" If you are involved in an auto collision, it's a question you'll most likely be asked by the the investigating police officer, the insurance adjuster, and even your attorney.

But how does it affect your injury claim in Ohio, if at all? The answer: it depends. Ohio law is a bit quirky on this issue. We have a "seat belt" law in Ohio, but as it pertains to an auto injury claim, it is admittedly narrow:
No person shall… occupy, as a passenger, a seating position on the front seat of an automobile being operated on any street or highway unless that person is wearing all of the available elements of a properly adjusted occupant restraining device. 
Translation: Ohio law creates a duty to wear a seat belt only for passengers in the front seat of the car. Therefore, if you were an unbelted passenger in the back seat and injured in a crash, evidence of your non-use of the seat belt would be inadmissible in any claim or lawsuit you bring for your injuries. The insurance company would not be able to argue that your injuries were caused or made worse by your failure to wear a seat belt.

But what if you were an unbelted driver or front seat passenger and injured in a crash? Again, Ohio law is fairly narrow on this issue and limits what an insurance company can argue against you even if you were not wearing a seat belt. First, it cannot argue that your failure to wear a seat belt means that you were negligent. Why is this important? An overly simplistic example will illustrate the point.

Suppose you have an injury claim worth $100,000 as determined by your jury. However, they also find that you were 50% negligent in causing your own injuries. Therefore, your $100,000 damage claim is reduced by 50%, and you are left with a verdict of $50,000. In our example above, the insurance company could not argue your non- seat belt usage was negligent, in an attempt to reduce your damages.

However, it can argue that not wearing your seat belt can diminish your pain and suffering damages if not wearing a seat belt contributed to the injuries you sustained in the crash. Example: you were driving and were rear ended and smashed your head into the windshield and lost 6 teeth as a result. It is possible that you wouldn't have injured your head or lost your teeth if you were wearing your seat belt.

But here's where things get a bit more complicated: it is the insurance company's burden to prove that you would not have sustained those very same injuries if you had been wearing your seat belt. This is often difficult if not impossible to prove. A person can be wearing a seat belt and still sustain brain, head, neck, shoulder, spine, lower trunk/limb, and a whole host of other injuries due to the nature of the crash. This is particularly true in high speed crashes, intersection collisions, and other off angle crashes

In fact, studies from numerous federal government agencies, and even data from the insurance industry, show that in side impact crashes, occupants are 2-3 times more likely to sustain head, neck, and spine injuries for a simple reason: a standard 3 point harness seat belt is not nearly as effective in protecting occupants from side impacts. It is for that reason that many cars now contain side impact airbags!

So here's the bottom line: it is the insurance company's burden to show that the specific injuries you sustained would have been less or non-existent if you'd been wearing your seat belt. And in the overwhelming majority of crashes, occupants will sustain injury even if wearing a seat belt.

Does that mean you should not wear one? Hell no! In many situations, seat belts may not prevent injury, but they may save your life. One thing is for certain: if you're ejected from your vehicle, the chances of you not surviving increase astronomically. And a seat belt is your best bet to keep that from happening.

Thursday, January 16, 2014

Little League Helmet Toss Lawsuit Will Strikeout!

If you fertilize your lawn correctly, you'll have a nice lawn with virtually no weeds. But occasionally a few will pop up despite your best efforts and hard work.

And so it is with the latest example of the occasional, goofball lawsuit that rears its ugly head like that patch of crabgrass on your lawn. This time, a little league coach in California is actually suing a 14 year old kid he coached for over half a million because the kid threw his helmet in celebration after a game and struck the coach in the back of his leg, shattering his achilles tendon.

Bad injury, no doubt. But this lawsuit is a major strikeout for a number of reasons and will eventually be thrown out at 2nd base or hopefully sooner. There are plenty of "legal arguments" for tossing this suit. First, there may be an argument that the coach assumed the risk of injury. Second, he's suing a 14 year old kid, and the standards for holding a minor liable for injury are more stringent than if he were an adult, at least in Ohio where I practice.

Legalities aside, this case screams out as being a loser for a number of practical reasons. Even if it goes to a trial (which I predict it won't), the overwhelming sympathies lie with this poor kid. It's generally not a good idea for a coach to sue a kid-player on his own team.  Second, as an aside, the coach is a chiropractor, and all the negative publicity he is getting is bound to be awful for his business.

In fact, I can think of nothing good that will come out of this lawsuit---unless you're The Chamber Of Commerce and its militant wing, "The Institute For Legal Reform." This group is famous for scouring the legal universe to find a handful of zany lawsuits like this, only to prop it up with its PR machine, and declare that our legal system is broken and in need of "reforms"--that coincidentally favor big business and insurance companies even when  legitimately injured folks bring meritorious lawsuits.

We who investigate and pursue personal injury lawsuits can do nothing about these outlier lawsuits. And we can't stop The Institute For Legal Reform's massive PR machine. But we can speak out against crap like this, and let people know that these lawsuits are truly like the unsightly weed on your manicured lawn.

The solution is to get rid of the weeds, not the lawn.....


Thursday, January 2, 2014

Passing Out At The Wheel Due To A Medical Condition--When Are You Liable?

Infrequently, a driver afflicted with a medical condition will lose control of the car and cause a collision. 

What is MORE common is the driver's insurance company claiming that the driver is not liable to pay the injured driver's damages in a personal injury claim/lawsuit because of a "sudden medical emergency."

For example, if a diabetic has a hypoglycemic (low blood sugar) episode and causes a crash, his insurance company may well deny being liable for the injuries he causes due to a "sudden medical emergency." Other classic examples of this accountability avoiding insurance tactic include drivers with epilepsy or heart ailments who become incapacitated due to those conditions while driving. 

This is almost always a bogus defense, for a number of reasons. First, the definition of a "sudden medical emergency" under Ohio law is where the driver "is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving." 

In other words, the "sudden medical emergency" must have been unforeseeable. Problem: most medical emergencies are quite foreseeable, even if not predictable as to exactly when they will occur.

Take the diabetic , for example. Most folks with this unfortunate condition must frequently manage their glucose levels. Because they can often fluctuate, even with careful management, their blood sugars can often rise or fall to dangerous levels, and cause impaired or lost consciousness or even seizure activity. Their insulin pump readings (which can store average glucose readings for months will often show dangerous fluctuations in glucose levels.  What's more, their medical records (from their internist or endocrinologist) may have documented previous incidents of problems, such as emergency trips to the hospital to re-regulate their glucose levels, and other evidence of lapses of consciousness.

Very rarely is unconsciousness due to a diabetic event ever considered an "unforeseeable" or "unanticipated" event.

What would be a potentially good example of a truly unforeseeable sudden medical emergency? A driver with no history at all of any heart problems or history who has a heart attack at the wheel, passes out at the wheel, and injures another motorist. That's about as rare as a politician at a truth convention...

Absent something like that, drivers (and their insurance companies) are not excused from  liability for injuries caused while under a medical condition. In my 25 years of personal injury practice, I have yet to see this defense work. Whenever it has been raised, it has usually died on the vine after a subpoena for the driver's physicians' medical records, which will often show the paper trail of problems that preceded the crash.