Somehow I was placed on the U.S. Chamber Of Commerce's e-mail list. As some people know, the Chamber hates "trial lawyers" and has spent billions lobbying against any lawsuits filed by injured or ripped off individuals against businesses and corporations. In fact, their mantra on their website is "Jobs, Not Lawsuits." Recently they sent me a link to a poll where readers can vote on the "most ridiculous lawsuits." May's entry was: "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury" (read on to find out more about this doozy of a lawsuit...)
Who is in favor of "frivolous lawsuits?" Nobody, including me. But why does the Chamber lobby so heavily for limits or restrictions on legitimate lawsuits? For example, they are in favor of "caps" or limits on what you can recover if you're sentenced to a wheelchair or a family member is killed due to corporate wrongdoing, preventable medical errors, and a whole host of other shenanigans. Their position on lawsuits can be boiled down to two truths: Your lawsuit as an individual against any corporation? Bad, and we need limits on your recovery. Any corporation suing you or another business for whatever reason? No limits.
Here's the flaw with the Chamber's monolithic stance on lawsuits: every so often, current events shine a spotlight on the hypocrisy of an organization like the Chamber's talking or lobbying points.So let's review what's happened within the last few weeks and see it squares with the Chamber's position:
1. Upper Big Branch mine explosion Twenty nine miners killed or missing and 57 infractions just 1 month before the explosion, including one for failing to develop an adequate ventilation plan;
2. BP Oil Well Explosion--11 workers killed, and thousands of jobs lost in marine and fishing industries too numerous to mention, including the destruction of the Gulf Coast ecosystem for years to come;
3. A New York Hospital that failed to read over 4,000 echocardiograms (heart disease tests) ordered by doctors because nobody bothered to flag the tests for review;
4. A Georgia hospital failed to read over 900 mammograms due to an employee's "failure" to make sure they were read;
5. A Maryland doctor is under federal investigation for allegdly performing over 300 unnecessary cardiac stent procedures.
Goofball lawsuit? Meet mass, horrific, preventable tragedies, inepteitude, and greed. Funny, I searched all over The Chamber's website but could find no mention of any of these recent jaw dropping examples of institutional negligence/recklessness, much less any support for limiting the liability of BP, for example, for its corporate wrongdoing.
Nah--it's too fun and too easy to rail on "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury ." By the way, you can vote for this as the "most ridiculous lawsuit" of the month.
One final note. The "handyman" lawsuit? It was filed in GREAT BRITAIN! Do we need any more proof of how disengenuous the StarChamber is when it comes to this issue?
Thursday, May 27, 2010
Monday, May 24, 2010
Should You Use Your Own Auto Insurance Company To Fix Or Total Your Car After An Accident?
Short answer: YES! Here are common misconceptions that I hear all too often from my clients shortly after an accident:
1. "My agent told me to go through the responsible party's insurance company first."
WRONG! If you have collison insurance with your own company, your insurance contract absolutely obligates your company to timely repair or total your car. Your policy, and Ohio law, does NOT obligate you to run the gauntlet of the at fault party's insurance company and their delay and low ball offers. All too often, crash victims in need of an estimate, a rental car, or an offer on their totalled car wait for days for the at fault party's insurance company to take care of the damage/loss. You can short circuit the dalay by insisting that your company immediately take care of your car.
2. "My agent said that my rates might go up if my company pays for my car damages."
WRONG again! Buried in your insurance policy is a "subrogation" clause. This means that if your insurance company pays a penny for your car damages, it will "subrogate" or obtain full reimbursement from the at fault party's insurance company.
3. "But I have a $1,000 deductible. My agent told me that they will have to subtract my deductible from any offer my insurance company makes on my car."
CORRECT....but only half true. The at fault party's insurance company will reimburse you for your $1,000 deductible shortly after the collision, and most body shops will work with you and simply wait for you to turn over the $1,000 when you receive it.
4. "I have rental coverage through my own company but my agent told me to first go through the at fault party's for a rental."
WRONG...and totally improper if you have purchased rental coverage with your insurance company. You pay a separate premuim for rental coverage, and the whole point of having it is to be entitled to immediate access to a rental car shortly after a collison, when you need it the most. Many of my clients report that the at fault party's company is too slow to offer a rental car. Worse yet, many companies tell accident victims: "go pay for a rental and we'll reimburse you later for reasonable rental charges," whatever that means. And many crash victims don't have the cash to plunk down on a rental car.
When you go through your insurance company, almost all of them will pay the rental agency directly.
These roadblocks are nothing more than your company's attempt to not have to get involved/pay anything by throwing everything back on the at fault party's insurance company. In a perfect world, the at fault party's company will step in and fairly take care of everything with no delay. All too often, however, this is not the case.
So you need to do two things to protect yourself. Get your insurance company involved immediately in your car's repair or replacement. Don't take no for an answer. And if you start to hear some or all of these excuses from your own company, it's time to drop your company and find a new one--and an agent who will work WITH you, and not against you.
1. "My agent told me to go through the responsible party's insurance company first."
WRONG! If you have collison insurance with your own company, your insurance contract absolutely obligates your company to timely repair or total your car. Your policy, and Ohio law, does NOT obligate you to run the gauntlet of the at fault party's insurance company and their delay and low ball offers. All too often, crash victims in need of an estimate, a rental car, or an offer on their totalled car wait for days for the at fault party's insurance company to take care of the damage/loss. You can short circuit the dalay by insisting that your company immediately take care of your car.
2. "My agent said that my rates might go up if my company pays for my car damages."
WRONG again! Buried in your insurance policy is a "subrogation" clause. This means that if your insurance company pays a penny for your car damages, it will "subrogate" or obtain full reimbursement from the at fault party's insurance company.
3. "But I have a $1,000 deductible. My agent told me that they will have to subtract my deductible from any offer my insurance company makes on my car."
CORRECT....but only half true. The at fault party's insurance company will reimburse you for your $1,000 deductible shortly after the collision, and most body shops will work with you and simply wait for you to turn over the $1,000 when you receive it.
4. "I have rental coverage through my own company but my agent told me to first go through the at fault party's for a rental."
WRONG...and totally improper if you have purchased rental coverage with your insurance company. You pay a separate premuim for rental coverage, and the whole point of having it is to be entitled to immediate access to a rental car shortly after a collison, when you need it the most. Many of my clients report that the at fault party's company is too slow to offer a rental car. Worse yet, many companies tell accident victims: "go pay for a rental and we'll reimburse you later for reasonable rental charges," whatever that means. And many crash victims don't have the cash to plunk down on a rental car.
When you go through your insurance company, almost all of them will pay the rental agency directly.
These roadblocks are nothing more than your company's attempt to not have to get involved/pay anything by throwing everything back on the at fault party's insurance company. In a perfect world, the at fault party's company will step in and fairly take care of everything with no delay. All too often, however, this is not the case.
So you need to do two things to protect yourself. Get your insurance company involved immediately in your car's repair or replacement. Don't take no for an answer. And if you start to hear some or all of these excuses from your own company, it's time to drop your company and find a new one--and an agent who will work WITH you, and not against you.
Tuesday, May 18, 2010
An Insurance Secret That Personal Injury And Insurance Attorneys Know...
Personal injury attorneys who represent auto accident victims routinely square off against attorneys hired by insurance companies to defend the at fault motorist in a lawsuit. Here's a secret that both we personal injury and insurance company attorneys know: we all carry high amounts of Uninsured/Underinsured Motorists' coverage. Ask any one of these attorneys what kind of coverage they carry, and the typical amount will be around $500,000--minimum.
There is a simple reason for this: all of us see case after case where (1) accidents victims were seriously injured, and the at fault motorists had (2) no liability insurance, or (3) minimum or low amounts of liability coverage, meaning that there was not enough coverage to compensate injured victims for all their losses. And all too often, auto accident victims did not have enough uninsured/underinsured motorist (known as UM/UIM) coverage with their own insurance comapny to protect them from irresponsible drivers with little to no liability insurance. If you have high levels of UM/UIM coverage, you could make a claim against your own insurance policy for the difference bewteen what your claim is worth, and the at fault driver's insurance.
EXAMPLE: You are seriously injured in a crash and your claim is worth $300,000. The at fault driver had Ohio state minimum limits of $12,500. If you had $500,000 in UM?/UIM coverage, you could collect $12,500 from the at fault party's insurance and $287,500 from your own insurance company under your UM/UIM coverage.
Now you know why we carry high levels of of UM/UIM coverage.
Here's another secret: we know that it is cheap to purchase high amounts of this coverage. Typically you can increase your UM/UIM coverage from $100,000 to $500,000 for around $150.00 per year ballpark, and maybe even less than that.
In my book, Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy, I explain the importance of this coverage, how you can intelligently purchase it, and all the RIGHT questions to ask your agent or companny.
It's free to all Ohioans. Just click on the book cover and fill out the contact information.
There is a simple reason for this: all of us see case after case where (1) accidents victims were seriously injured, and the at fault motorists had (2) no liability insurance, or (3) minimum or low amounts of liability coverage, meaning that there was not enough coverage to compensate injured victims for all their losses. And all too often, auto accident victims did not have enough uninsured/underinsured motorist (known as UM/UIM) coverage with their own insurance comapny to protect them from irresponsible drivers with little to no liability insurance. If you have high levels of UM/UIM coverage, you could make a claim against your own insurance policy for the difference bewteen what your claim is worth, and the at fault driver's insurance.
EXAMPLE: You are seriously injured in a crash and your claim is worth $300,000. The at fault driver had Ohio state minimum limits of $12,500. If you had $500,000 in UM?/UIM coverage, you could collect $12,500 from the at fault party's insurance and $287,500 from your own insurance company under your UM/UIM coverage.
Now you know why we carry high levels of of UM/UIM coverage.
Here's another secret: we know that it is cheap to purchase high amounts of this coverage. Typically you can increase your UM/UIM coverage from $100,000 to $500,000 for around $150.00 per year ballpark, and maybe even less than that.
In my book, Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy, I explain the importance of this coverage, how you can intelligently purchase it, and all the RIGHT questions to ask your agent or companny.
It's free to all Ohioans. Just click on the book cover and fill out the contact information.
Monday, May 17, 2010
Trucking Company Tries To Avoid Responsibility For Loading Dock Injury
OHIO TRUCKING ACCIDENT--A TRUE STORY
Facts: an out of state truck driver fails to set the brakes at a loading dock, injuring a forklift driver. A lawsuit is filed, and it is discovered that the truck driver took pictures of the resting position of the truck and forklift and turned the photos over to his employer’s company safety director. The safety director’s deposition is taken, and he denies the existence of any photographs, raising the issue of whether important evidence was destroyed.
ACCIDENT KITS
Every truck driver is given an “Accident Kit” by his company. Usually included in this kit is a disposable camera, some instructions for the driver (including instructions to “Never admit fault to anybody”), and, in this particular case, an “Exoneration Card.” This card basically said that the truck driver was relieved of any responsibility for the crash! Worse yet, the truck drivers were instructed to try to get accident victims to sign these cards!
This made me wonder: Shouldn’t the “Accident Kit” have an “Acceptance of Responsibility” card in the event the truck driver was clearly at fault? So I asked the Safety Director about this at his deposition:
See how it works after a crash? Never admit fault, but always try to get the injured person to admit responsibility. So much for “personal responsibility” or doing the right thing; apparently that only applies to the injured person, and not to corporations or their insurance companies...
After we filed a motion to include a count for punitive damages due to possible destruction of evidence, the trucking company admitted liability at a court ordered mediation, and the case settled for a confidential sum.
Facts: an out of state truck driver fails to set the brakes at a loading dock, injuring a forklift driver. A lawsuit is filed, and it is discovered that the truck driver took pictures of the resting position of the truck and forklift and turned the photos over to his employer’s company safety director. The safety director’s deposition is taken, and he denies the existence of any photographs, raising the issue of whether important evidence was destroyed.
ACCIDENT KITS
Every truck driver is given an “Accident Kit” by his company. Usually included in this kit is a disposable camera, some instructions for the driver (including instructions to “Never admit fault to anybody”), and, in this particular case, an “Exoneration Card.” This card basically said that the truck driver was relieved of any responsibility for the crash! Worse yet, the truck drivers were instructed to try to get accident victims to sign these cards!
This made me wonder: Shouldn’t the “Accident Kit” have an “Acceptance of Responsibility” card in the event the truck driver was clearly at fault? So I asked the Safety Director about this at his deposition:
Q. Does the accident packet have a card that says, "Acceptance Of Responsibility," if the driver truly committed a driving mistake, for instance, if he rear-ended somebody?
A. No.
Q. All right. I didn't think so. Thought I'd ask anyway, though.
A. Well, he's told not to say nothing, so he wouldn't answer it anyhow.
Q. Even if he's at fault he's told not to say anything?
A. Absolutely.
Q. Why?
A. If they want a third party narrative from an officer, then he tells him what the sequence of events. We tell the drivers it's left to somebody else to determine fault, usually in a court of law.
Q. Well, what if a driver's clearly at fault, clearly rear ended somebody, I wasn't paying attention?
A. What's clearly at fault?
Q. You don't know what that is?
A. No. If you're driving through an intersection and a light is green, and somebody hits you, who's at fault, the guy that ran the red light or the guy that ran the green light?
Q. Let me give you a hypothetical.
A. Okay.
Q. Truck driver's trying to make a cell phone call, not paying attention and he rear ends somebody clearly at a stop sign.
(Trucking Company Attorney) I'm going to object to the hypothetical.
Q. Do you instruct your drivers under all circumstances, "Don't admit you're at fault even in a situation like that, just don't do it?"
A. I've got nothing further to say about it.
Q. Yes or no?
A. I've got no opinion.
See how it works after a crash? Never admit fault, but always try to get the injured person to admit responsibility. So much for “personal responsibility” or doing the right thing; apparently that only applies to the injured person, and not to corporations or their insurance companies...
After we filed a motion to include a count for punitive damages due to possible destruction of evidence, the trucking company admitted liability at a court ordered mediation, and the case settled for a confidential sum.
Tuesday, May 11, 2010
Robotic Surgery Safety--Are Patients Part Of A "Learning Curve?"
Robotic or robot assisted surgery appears to be the latest surgical craze. Hospitals are purchasing these robots (known as the "de Vinci") to assist in heart, prostate, and gynecological surgeries, just to name a few. They are also spending lots of money marketing robotic surgery in billboards, TV, newspaper, and radio ads as a new breakthrough in "minimally invasive" surgery. However, a recent Wall Street Journal (WSJ) article has questioned whether certain hospitals and surgeons are qualified to offer robotic surgery as a safe alternative to traditional surgery.
The reason: there is a steep learning curve for the operator/surgeon to become proficient or experienced with the robot. Some surgeons quoted in the article indicated that it takes anywhere from 200-700 surgeries to become experienced enough to avoid certain surgical complications due to tecnical or operator error. And some smaller hospitals don't do nearly enough surgeries per year to allow surgeons to gain the necessary experience.
Here's the problem, according to the WSJ: many smaller hospitals have invested an initial $1.4 million in the machine, and may need to have 500 surgeries per year to make money on their investment. This raises an obvious question: is robotic surgery being "pushed" on patients in order to justify the use (and cost) of the machine?
Another potential problem is that there are no real standards as to when a surgeon is deemed qualified to safely operate the robot. Surgeons interested in robotic surgery are typically sent to a two day seminar where they operate on pigs and cadavers. Hospitals are free to set their own additional standards regarding operating under supervision (known as "proctoring"), but they are often minimal.
The article is worth a read because it highlights numerous misadventures/injuries with robotic surgeries, and hints that surgeon inexperience was the primary cause of patient injury. This issue sounds eerily similar to what happened when laparoscopic gallbladder (known as laparoscopic cholycystectomy or "lap chole") surgery was introduced in the late 1980's as the newest revolutionary breakthrough. Similarly, surgeons were sent to two or three day seminars and practiced on pig bladders, were supervised for a limited number of surgeries, and were deemed "proficient" in laparoscopic surgery.
The results were initiallly disasterous. The incidence of common bile duct injuries (a devastating injury to the main bile duct that is NOT supposed to be cut during gall bladder removal) increased dramatically versus the old fashioned "open" method of gall bladder removal. Numerous medical journals reporting these findings noted that the increase in common bile duct injuries was due to a "learning curve" caused by inexperienced surgeons as hospitals rushed to promote a new and better method of gall bladder removal. From personal experience, I investigated and litigated numerous Ohio laparscopic gall bladder malpractice cases where the patient's common bile duct was cut/severed, including a jury trial where the jury concluded that malpractice occurred and that the injury was preventable.
With the similar history of laparoscopic surgery in mind, patients inquiring about robotic surgery should ask the following questions of their hospital and surgeons:
1. How long has robotic surgery been in place at your hospital?
2. How many operations have been performed robotically at your hospital since this technology was introduced?
3. What are the surgeon's qualifications for performing robotic surgery?
4. What do your qualifications consist of?
5. How many robotic surgeries did you assist in?
6. How many have you performed on your own?
7. What specific complications have you encountered?
8. What is complication rate for your proposed surgery over and above the complication rate for traditional surgery?
9. Has the hospital published or kept track of the complication rate for robotic surgery and are those results available for review?
10. What are the latest leading studies, medical journal articles, papers, or abstracts regarding the safety or complication rates for your proposed surgery (and ask for a copy of the article or study)
If you don't receive any real answers to these basic questions, consider taking a pass on the de Vinci. Medical technology can be a wonderful thing. Indeed, laparoscopic bile duct injuries in lap gall bladder surgery have now essentially decreased very close to the level of injuries seen with traditional gall bladder surgery. But the lack of real testing and data with any new technology or surgery can put thousands of patients at risk for years until more is known about complication rates. Bottom line: you as a patient should not be an unknowing or unwilling guinea pig in any hospital's or surgeon's "learning curve."
The reason: there is a steep learning curve for the operator/surgeon to become proficient or experienced with the robot. Some surgeons quoted in the article indicated that it takes anywhere from 200-700 surgeries to become experienced enough to avoid certain surgical complications due to tecnical or operator error. And some smaller hospitals don't do nearly enough surgeries per year to allow surgeons to gain the necessary experience.
Here's the problem, according to the WSJ: many smaller hospitals have invested an initial $1.4 million in the machine, and may need to have 500 surgeries per year to make money on their investment. This raises an obvious question: is robotic surgery being "pushed" on patients in order to justify the use (and cost) of the machine?
Another potential problem is that there are no real standards as to when a surgeon is deemed qualified to safely operate the robot. Surgeons interested in robotic surgery are typically sent to a two day seminar where they operate on pigs and cadavers. Hospitals are free to set their own additional standards regarding operating under supervision (known as "proctoring"), but they are often minimal.
The article is worth a read because it highlights numerous misadventures/injuries with robotic surgeries, and hints that surgeon inexperience was the primary cause of patient injury. This issue sounds eerily similar to what happened when laparoscopic gallbladder (known as laparoscopic cholycystectomy or "lap chole") surgery was introduced in the late 1980's as the newest revolutionary breakthrough. Similarly, surgeons were sent to two or three day seminars and practiced on pig bladders, were supervised for a limited number of surgeries, and were deemed "proficient" in laparoscopic surgery.
The results were initiallly disasterous. The incidence of common bile duct injuries (a devastating injury to the main bile duct that is NOT supposed to be cut during gall bladder removal) increased dramatically versus the old fashioned "open" method of gall bladder removal. Numerous medical journals reporting these findings noted that the increase in common bile duct injuries was due to a "learning curve" caused by inexperienced surgeons as hospitals rushed to promote a new and better method of gall bladder removal. From personal experience, I investigated and litigated numerous Ohio laparscopic gall bladder malpractice cases where the patient's common bile duct was cut/severed, including a jury trial where the jury concluded that malpractice occurred and that the injury was preventable.
With the similar history of laparoscopic surgery in mind, patients inquiring about robotic surgery should ask the following questions of their hospital and surgeons:
1. How long has robotic surgery been in place at your hospital?
2. How many operations have been performed robotically at your hospital since this technology was introduced?
3. What are the surgeon's qualifications for performing robotic surgery?
4. What do your qualifications consist of?
5. How many robotic surgeries did you assist in?
6. How many have you performed on your own?
7. What specific complications have you encountered?
8. What is complication rate for your proposed surgery over and above the complication rate for traditional surgery?
9. Has the hospital published or kept track of the complication rate for robotic surgery and are those results available for review?
10. What are the latest leading studies, medical journal articles, papers, or abstracts regarding the safety or complication rates for your proposed surgery (and ask for a copy of the article or study)
If you don't receive any real answers to these basic questions, consider taking a pass on the de Vinci. Medical technology can be a wonderful thing. Indeed, laparoscopic bile duct injuries in lap gall bladder surgery have now essentially decreased very close to the level of injuries seen with traditional gall bladder surgery. But the lack of real testing and data with any new technology or surgery can put thousands of patients at risk for years until more is known about complication rates. Bottom line: you as a patient should not be an unknowing or unwilling guinea pig in any hospital's or surgeon's "learning curve."
Monday, May 3, 2010
I Have An Injury Claim And I'm Getting Divorced--How Much Is My Spouse Entitled To?
Occasionally we have guest bloggers write on topics of interest that cross over into Ohio personal injury issues. Our guest blogger is Robert L. Mues, an outstanding Dayton, Ohio family law attorney. I found his interesting and informative blog and website while searching the Net for...interesting and informative blogs and websites! His blog is a must read for folks dealing with the weighty issues of divorce, custody, and other related legal matters. One issue that intersects our legal worlds is how Ohio personal injury claims or proceeds are divided in domestic relations court. Take it away, Robert...
How Injury Settlements are Treated by Ohio Divorce Courts
Factual Scenario:
A year ago you were involved in a rear-end car accident which was not your fault. You were the only occupant in the car. You were taken to the hospital from the accident scene and given some pain medication and told to contact your family doctor. The next day, you couldn’t believe your back and neck pain! The pain continued and your wife correctly suggested that you hire an attorney to represent both of you in dealing with the insurance company. As a result of the accident, you missed a week of work at ABC Machine Shop, where you work as a tool maker being paid $17 per hour. Fortunately, all your medical expenses were covered under your health insurance plan except for $100 in co-pays.
In addition, for about a month or so you were not able to cut the lawn, take out the trash and do other chores you usually did. Your wife had to pick up the slack. Your interest in being intimate with your wife also suffered. All of this started causing arguments between the two of you. You generally just went to work and would come home and go to bed early. Your wife started staying out late after work and “going out with the girls”. After much discussion and investigation, you learned she had become involved with a male friend. The two of you decided 7 months after the accident to separate and, unfortunately, to end your marriage and get a divorce.
You both hire separate divorce lawyers. In the midst of the divorce, your lawyer on your accident case calls you to tell you that after long and hard negotiations there is a “fair” offer on the table for you and your wife. That is great news you think, since you could use the money to help get back on your feet.
But your accident lawyer tells you that your wife will need to sign both the insurance check and release document. Now you realize that you might have a problem. So you decide to call your divorce attorney and tell her the situation and ask if keeping all the money would be a problem. She says that this is a new issue and that it will “need to be worked out” with your wife’s attorney. “Worked out?” What is there to work out, you think, since it was you that was injured and not your wife? Here is what you are likely to learn from your divorce lawyer about how personal injury claims are typically treated in Ohio Courts.
IS A PERSONAL INJURY SETTLEMENT SEPARATE OR MARITAL PROPERTY?
The general rule is that if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate, the settlement is separate property and should be fully awarded to the injured person. Realizing this to be the law, your divorce attorneys will try to get you all or as much of the proceeds as possible.
If the two lawyers are not able to negotiate an agreement, the divorce court would need to determine what part of the proceeds are “martial” and subject to equitable division and what portion is “separate property” and not divided. Separate property is defined to include “compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.” Thus, in order for the settlement to be considered separate property, a person must trace those funds, and those funds must represent something other than a loss of marital earnings or compensation for expenses paid from marital assets. A personal injury settlement is “marital property” divisible upon divorce, only to the extent that it reimburses injured spouse for lost earnings and medical expenses that have adverse impact on marital estate. In characterizing settlement proceeds, it is proper to consider whether injured spouse's medical expenses had, in fact, depleted the marital estate, or whether employer or insurer had picked up such expenses. It is also common that a portion of the settlement proceeds are intended to compensate the injured person’s spouse for the damage or impact to their marital relationship, which is referred to as a “loss of consortium” claim. Divorce Courts typically view that claim as the separate property of the spouse of the accident victim.
Ohio Courts have held that a personal injury settlement is marital property in the following situations: commingling assets by accepting entire settlement in one check made payable to both parties; compensation for lost wages; and medical bills that have an impact on the marital estate. In addition, when there is a lower settlement amount than what would have otherwise occurred due to low policy limits or a lack of funds from the responsible party, there is no abuse of discretion for the trial court to allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only.
Many personal injury attorneys are successful in requesting the insurance adjustor to provide a letter breaking down the proceeds by category. That can be very helpful for the divorce lawyer. But if the adjuster will not provide that breakdown, then the Court will need to hear testimony about the injuries and review the demand package sent to the adjustor and apply the law.
CONCLUSION
So, what is my best estimate how a court might allocate the net proceeds in the above scenario if there is no letter from the insurance company setting forth their breakdown? Well, it would seem that the lost wage portion of approximately $680 would likely to be considered “marital” and she would get half of that amount. The medical bills did not impact the parties significantly. Technically, she should get perhaps $50 to reimburse her 1/2 of the co-pays. In my experience, loss of consortium claims typically make up only a small portion of the gross settlement unless the injuries are very significant. But this is a very “grey” area subject to the Court’s equitable discretion. Any amount allocated to her loss of consortium claim would be wife’s separate property. So, in my scenario, the lion’s share of the settlement proceeds will go to you to compensate you for your pain, suffering, and all that you had gone through as a result of the collision.
Robert L Mues is the managing partner of the Dayton law firm of Holzfaster, Cecil, McKnight & Mues. He has focused much his practice over the past 31 years in the family law arena handling divorce, custody and juvenile law matters throughout Southwest Ohio and in many Ohio Courts, including the Ohio Supreme Court. Mr. Mues has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. He has been very active in supporting child welfare issues throughout his career as well as serving on various charitable non-profit boards. He loves to write and is very proud to be the publisher of the popular and informative Ohio Family Law Blog. To learn more about Mr. Mues and to be linked to the Ohio Family Law Blog, click here.
Link to the blog:
http://www.hcmmlaw.com/blog/
Wednesday, April 28, 2010
Insurance Companies Using Facebook and MySpace To Spy On You
You had to figure this was coming...Insurance adjusters are getting access to social media sites and using posted information against claimants in a wide variety of situations. Case in point: a colleague recently reported that an insurance adjuster recently told him that his teenage client ( injured in an auto accident) had misstated her age, was smoking, and engaging in other "questionable activity."
What's the legal relevance of these activities to her injury claim? Perhaps it showed her engaging in all sorts of activities that she claimed she was incapable of doing because of the crash--a potential problem.
But what if her "activities" had no bearing on her injuries or her claim? If a lawsuit were filed, perhaps this evidence would be ruled irrelevant and therefore inadmissible. But here's the problem: probably over 90% of all auto or other injury claims are settled without a lawsuit being filed. So, insurance companies are free to try to use this "we've got some dirt on you" strategy as leverage in settlement negotiations. Sneaky? You bet. But there's a reason why insurance companies continue to make money, recession or no recession.
The ripple effects of insurers and employers trolling social media remain to be seen. I suspect that life and health insurance companies are using this tactic as well. Just think about all the applications for insurance you fill out, and that little clause at the end where you verify that the information you've given is true and correct. Now measure all that against information that you may post to your favorite sites. Something to think about.
Probably the best solution is to assume your Mom is reading your sites and "motherproof" them. Is "motherproofing" a word? Maybe I'll copyright it.
What's the legal relevance of these activities to her injury claim? Perhaps it showed her engaging in all sorts of activities that she claimed she was incapable of doing because of the crash--a potential problem.
But what if her "activities" had no bearing on her injuries or her claim? If a lawsuit were filed, perhaps this evidence would be ruled irrelevant and therefore inadmissible. But here's the problem: probably over 90% of all auto or other injury claims are settled without a lawsuit being filed. So, insurance companies are free to try to use this "we've got some dirt on you" strategy as leverage in settlement negotiations. Sneaky? You bet. But there's a reason why insurance companies continue to make money, recession or no recession.
The ripple effects of insurers and employers trolling social media remain to be seen. I suspect that life and health insurance companies are using this tactic as well. Just think about all the applications for insurance you fill out, and that little clause at the end where you verify that the information you've given is true and correct. Now measure all that against information that you may post to your favorite sites. Something to think about.
Probably the best solution is to assume your Mom is reading your sites and "motherproof" them. Is "motherproofing" a word? Maybe I'll copyright it.
Thursday, April 22, 2010
I Owe $10,000 On My Totaled Car And The Insurance Company Says It's Only Worth $7,000--The Importance Of Gap Coverage
"Why Should I Still Owe the $3,000 On a Totaled Car
For a Collision That Was Not My Fault?"
This is a very common question, and is difficult to explain to upset clients. Under Ohio law, if your car is totaled, you are entitled to the actual cash value of the car.The value of your car MAY OR MAY NOT BE equal to what you owe on it!!! For example, if you take out a 5 year loan on a $10,000 car, and your payments total $13,000 over that time, you are $3,000 “in the hole” when you drive it off the lot. If you get in a collision and total the car before you get home, all any insurance company owes you is the value of the vehicle – and not what you owe on it.
GAP INSURANCE IS THE ANSWER:
You run a big risk of still having to pay for years on a totaled car if you put no money down on it and finance it over a lot of years. One way of protecting yourself is to purchase “Gap Insurance.” It covers you for the difference between what you owe and your actual cash value. In our example above, the gap insurance would have paid off the $3,000 you owed on your loan. Some car dealers sell it, or your auto agent might be able to add it to your policy. Just make sure your gap insurance covers accidents.
For a Collision That Was Not My Fault?"
This is a very common question, and is difficult to explain to upset clients. Under Ohio law, if your car is totaled, you are entitled to the actual cash value of the car.The value of your car MAY OR MAY NOT BE equal to what you owe on it!!! For example, if you take out a 5 year loan on a $10,000 car, and your payments total $13,000 over that time, you are $3,000 “in the hole” when you drive it off the lot. If you get in a collision and total the car before you get home, all any insurance company owes you is the value of the vehicle – and not what you owe on it.
GAP INSURANCE IS THE ANSWER:
You run a big risk of still having to pay for years on a totaled car if you put no money down on it and finance it over a lot of years. One way of protecting yourself is to purchase “Gap Insurance.” It covers you for the difference between what you owe and your actual cash value. In our example above, the gap insurance would have paid off the $3,000 you owed on your loan. Some car dealers sell it, or your auto agent might be able to add it to your policy. Just make sure your gap insurance covers accidents.
Monday, April 19, 2010
Company Launches Special Motorcycle To Help Disabled Riders Get Back Their Freedom/Independence
One of the biggest challenges accident victims face is the loss of their freedom and independence. We all take for granted the simple things in life, particularly the hobbies we enjoy, whether it's swinging a golf club, casting a rod in persuit of our favorite fish, or even bending over to plant flowers or vegetables in our gardens.
It's common for motorcycle accident victims to sustain even more devastating and challenging injuries after a motorcycle accident, for obvious reasons. Many never regain the ability to ride and enjoy the freedom and independence of the open road--an American tradition.
One company, Mobility Conquest, solved this problem with the launch of a really cool product: a motorcycle specially built for disabled or wheelchair dependent persons. According to Mark Allen Roberts, Mobility Conquest president: "We are connecting people who are passionate about riding motorcycles with a product that gets them on the road, feeling the wind in their face again...I have a great job as everyone who rolls their chair up the ramp of our motorcycle you can drive from a wheelchair has this huge grin, its as if a part of them that was removed, has been returned."
How cool is that? Amped up with plenty of horsepower, this cycle can even accomodate a passenger. Congratulations to this company for empowering hopefully thousands of folks who never thought they'd get back the feeling of traveling down a windy country road on a lazy Sunday afternoon.
Thursday, April 15, 2010
Hospital Acquired Infections: Still A Nagging Problem For Hospitals
According to a recent New York Times Article, "The nagging and largely solvable problem of hospital-acquired infections remains as resistant to cure as the germs that contribute to an estimated 100,000 deaths a year..."
These findings were based on The 2009 National Healthcare Quality Report issued by the U.S. Department of Health and Human Services. Essentially, there's been no real progress made in reducing certain hospital acquired infections, and many of them, such as post-operative sepsis, are increasing (the study noted an 8% increase).
One of the key findings of the study was that wound infection following surgery is common in hospital acquired infections, and that "hospitals can reduce the risk of surgical site infection by making sure patients get the right antibiotics at the right time on the day of their surgery."
Having surgery at a hospital soon? Ask your surgeon about the specifics of pre-operative antibiotics before surgery, i.e whether you will get them and when you will get them.
Some other numbers that caught my eye: the cost attributed to medical errors was between 17 and 29 BILLION dollars.
You can read more about this topic at The Safe Patient Project.
These findings were based on The 2009 National Healthcare Quality Report issued by the U.S. Department of Health and Human Services. Essentially, there's been no real progress made in reducing certain hospital acquired infections, and many of them, such as post-operative sepsis, are increasing (the study noted an 8% increase).
One of the key findings of the study was that wound infection following surgery is common in hospital acquired infections, and that "hospitals can reduce the risk of surgical site infection by making sure patients get the right antibiotics at the right time on the day of their surgery."
Having surgery at a hospital soon? Ask your surgeon about the specifics of pre-operative antibiotics before surgery, i.e whether you will get them and when you will get them.
Some other numbers that caught my eye: the cost attributed to medical errors was between 17 and 29 BILLION dollars.
You can read more about this topic at The Safe Patient Project.
Tuesday, April 13, 2010
Bubbles...And A Profile In Courage
Last night my wife and I had the privilege of listening to a presentation by Canton resident Barbara Turkeltaub, a Holocaust survivor and a friend of mine.
Imagine being a six year old at a playground retreiving a soccer ball in a ditch. Suddenly it's very loud and you hear strange noises; you emerge. The children are dead. Nazis have invaded Poland and have bombed your city. You are rounded up with your sisters and parents into the Vilma ghettos. Arrangements are eventually made for the family to split up and escape. You and your three year old sister are ushered into a wagon in the middle of the night, buried by blankets and hay, to a farm of strangers.
You are barely welcome there, and you overhear that you and your sister are going to be turned in to the Gestapo the next day for some kind of reward. You don't know what the "Gestapo" is, but your fragile mind senses that something is wrong. You decide to escape in the middle of the night, but your sister is restless. You break into the pantry to get some bread to keep her quiet. You spot a what appears to be a jar of honey; this will work. The sweetness of the honey on the bread will distract her during the escape.
You sneak out and give her the bread to keep her quiet. Hand in hand, in the darkness of night, you notice bubbles coming out of her mouth. The jar of honey? Turns out is was soap. No matter; she is content to eat the bread lathered in soap, and you make your escape, eventually to a convent to be raised by nuns and priests until reunited with your mother a few years after the war ends.
The crowded room erupts in laughter along with Barbara. A moment of levity in an otherwise unfathomable story. A story told at a university peppered with college students. And a lesson in grace, forgiveness, and the strength of the human spirit that cannot be found in any textbook or course syllabus.
There are also lessons here for people devastated by injury and other personal tragedies like the loss of a loved one. Perserverence. Never giving up. Survival. Forgiveness. Finding kernels of goodness when surrounded by evil or dire circumstances.
Thank you, Barbara, for sharing.
Imagine being a six year old at a playground retreiving a soccer ball in a ditch. Suddenly it's very loud and you hear strange noises; you emerge. The children are dead. Nazis have invaded Poland and have bombed your city. You are rounded up with your sisters and parents into the Vilma ghettos. Arrangements are eventually made for the family to split up and escape. You and your three year old sister are ushered into a wagon in the middle of the night, buried by blankets and hay, to a farm of strangers.
You are barely welcome there, and you overhear that you and your sister are going to be turned in to the Gestapo the next day for some kind of reward. You don't know what the "Gestapo" is, but your fragile mind senses that something is wrong. You decide to escape in the middle of the night, but your sister is restless. You break into the pantry to get some bread to keep her quiet. You spot a what appears to be a jar of honey; this will work. The sweetness of the honey on the bread will distract her during the escape.
You sneak out and give her the bread to keep her quiet. Hand in hand, in the darkness of night, you notice bubbles coming out of her mouth. The jar of honey? Turns out is was soap. No matter; she is content to eat the bread lathered in soap, and you make your escape, eventually to a convent to be raised by nuns and priests until reunited with your mother a few years after the war ends.
The crowded room erupts in laughter along with Barbara. A moment of levity in an otherwise unfathomable story. A story told at a university peppered with college students. And a lesson in grace, forgiveness, and the strength of the human spirit that cannot be found in any textbook or course syllabus.
There are also lessons here for people devastated by injury and other personal tragedies like the loss of a loved one. Perserverence. Never giving up. Survival. Forgiveness. Finding kernels of goodness when surrounded by evil or dire circumstances.
Thank you, Barbara, for sharing.
Friday, April 9, 2010
West Virginia Mine Disaster--No Liability If This Happened In Ohio
Every so often, a horrible tragedy serves as a reminder of how "tort reform" allows companies to escape accountability. The recent West Virginia mining explosion tragically took the lives of twenty mine miners. Predictably, politicians are calling for investigations of mining safety, and Massey Energy's safety record is under scrutiny--for good reason, according to The Charleston Gazette:
What if a similar mine explosion happened in Ohio? Assuming that the mine owner had repeated safety violations and even made no effort to correct them, the owners would not be liable for the miners' wrongful deaths, courtesy of a recent Ohio Supreme Court Case I wrote about last week. Under current Ohio law, an employer is not liable for injuries or deaths to injured workers unless the employer specifically intended to injure or kill them--the same standard of proof required to prove a murder. This law was passed by The Ohio Legislature in 2005 as part of "tort reform" legislation. The "theory" behind the law was that, reduced liability for businesses would yield a "predictable legal climate" in Ohio that would be would be "attractable" to businesses.
What kind of policy is promoted by a legal "race to the bottom" in the form of laws that allow employers to escape legal accountability for blatently ignoring safety rules and regulations? The sad reality is that nobody will realize how regressive or idiotic this law is until a similar tragedy happens here in Ohio. And if it does happen, policitians will call for a "full investigation" and feign surprise when the public learns that lack of legal accountability is the foul byproduct of another tort reform law that's supposed to be "good for all of us."
Last year, federal regulators studied the safety record of Massey Energy's Upper Big Branch Mine to see if the operation should be put on a "pattern of violations" status, a move that would shut down mining sections each time inspectors found serious violations.
U.S. Mine Safety and Health Administration officials decided the company hadn't met the agency's complicated criteria for deserving such a stepped-up enforcement action.
Upper Big Branch met nine of MSHA's 10 criteria for a pattern of violations, said agency spokesman Carl Fillichio. It had at least 20 serious citations, it had two orders citing "imminent harm" to miner safety, and had violation rates worse than the national average.
But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.
Upper Big Branch didn't have a single such order. It had 16 of them.
But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.
What if a similar mine explosion happened in Ohio? Assuming that the mine owner had repeated safety violations and even made no effort to correct them, the owners would not be liable for the miners' wrongful deaths, courtesy of a recent Ohio Supreme Court Case I wrote about last week. Under current Ohio law, an employer is not liable for injuries or deaths to injured workers unless the employer specifically intended to injure or kill them--the same standard of proof required to prove a murder. This law was passed by The Ohio Legislature in 2005 as part of "tort reform" legislation. The "theory" behind the law was that, reduced liability for businesses would yield a "predictable legal climate" in Ohio that would be would be "attractable" to businesses.
What kind of policy is promoted by a legal "race to the bottom" in the form of laws that allow employers to escape legal accountability for blatently ignoring safety rules and regulations? The sad reality is that nobody will realize how regressive or idiotic this law is until a similar tragedy happens here in Ohio. And if it does happen, policitians will call for a "full investigation" and feign surprise when the public learns that lack of legal accountability is the foul byproduct of another tort reform law that's supposed to be "good for all of us."
Monday, April 5, 2010
Lawyers "Case Results" On Websites--Reading Between The Lines For What It REALLY Means
Recently I glanced at a personal injury lawyer's website. It featured video clips of him lecturing visitors on the importance of choosing a lawyer who has tried cases to juries. Unaware of ANY jury verdicts this attorney has achieved, I searched the "case results" section of his website. Perhaps I was wrong, I thought, and he had obtained some decent jury verdicts after all.
Listed were numerous cases the attorney had handled. After every case, the term "awarded" was used. One MAJOR problem with use of the term "awarded:" he didn't mention whether these "awards" were in the form of a jury verdict. To the unsuspecting public, his use of the term "awarded" might be equated with actual jury verdicts. But to those of us who actually try cases to juries consistently, we know the difference. His "awards" could just as easily be insurance company "settlements" that did not involve even a lawsuit, much less a jury verdict.
What difference does the subtle distinction bewteen an "award" and a jury verdict mean? A lot. Proven ability to go the distance--from a lawsuit all the way to a jury verdict--makes insurance companies take notice that the attorney or firm will commit the resources to try the case to a verdict if a settlement offer is inadequate. It's the difference between talking the talk and walking the walk.
The only "verdict" listed on the website? It was an out of state verdict that was handled by an out of state law firm, with no indication that the Ohio attorney had any involvement with it. If an attorney or firm is going to brag about jury trial experience or "verdicts," don't you think they should be listed as such? And be their own verdicts and not some other firm's?
I do.
Listed were numerous cases the attorney had handled. After every case, the term "awarded" was used. One MAJOR problem with use of the term "awarded:" he didn't mention whether these "awards" were in the form of a jury verdict. To the unsuspecting public, his use of the term "awarded" might be equated with actual jury verdicts. But to those of us who actually try cases to juries consistently, we know the difference. His "awards" could just as easily be insurance company "settlements" that did not involve even a lawsuit, much less a jury verdict.
What difference does the subtle distinction bewteen an "award" and a jury verdict mean? A lot. Proven ability to go the distance--from a lawsuit all the way to a jury verdict--makes insurance companies take notice that the attorney or firm will commit the resources to try the case to a verdict if a settlement offer is inadequate. It's the difference between talking the talk and walking the walk.
The only "verdict" listed on the website? It was an out of state verdict that was handled by an out of state law firm, with no indication that the Ohio attorney had any involvement with it. If an attorney or firm is going to brag about jury trial experience or "verdicts," don't you think they should be listed as such? And be their own verdicts and not some other firm's?
I do.
Liberty Mutual's "Responsibility" Means Wasting Money AND Denying Coverage To Its Policyholders
Some of you may have seen Liberty Mutual's commercials about "responsibility," a PR campaign to paint themselves as a "responsible insurance company," whatever that means (think "jumbo shrimp" and other oxymorons). Recently someone sent me this link, an insufferably long movie short (hey, there's another oxymoron)that paints lawyers in an unflattering light. After watching it, I wondered: what on earth is the point? To poison the public about lawyers (gee, now there's a novel idea that's never been tried before)? To sell more Liberty Mutual policies by wasting thousands on a lame movie that takes a swipe at the legal profession?
If I were a Liberty Mutual insured/policyholder, I'd be wondering: how much did it cost to produce this hokum and how much more am I paying for my car insurance premiums because of it? Liberty's cute little lawyer bashing movie aside, let's focus on something substantive, like what you're actually buying with a Liberty Mutual auto policy and what exclusions Liberty is inserting in its policies that avoid responsibility for paying its own policyholders in Ohio auto collisions.
Here's a little exclusion that Ohio Liberty Mutual insureds might want to know about:
What does this exclusion mean? If a family is in the Liberty insured "family vehicle" and Dad falls asleep and wrecks the car, seriously injuring his wife and kids, there is no liability coverage for Dad's negligent driving. It means that if Grandma and Grandpa allow grandson to drive their "insured vehicle" and grandson wrecks the car, injuring Grandma and Grandpa, there is no liability coverage for grandson's driving negligence.
Simple: exclusion means no responsibility to pay for family injury claims in the "insured vehicle."
Of course, there's no "movie" about all the fine print exclusions that some companies like Liberty Mutual have in their "full coverage" policies. How's that for "responsibility?"
P.S. Not all Ohio insurance companies have this exclusion. To find out more, order our book, FREE to all Ohio residents: "How To Buy Car Insurance In Ohio" (just click on the book cover on our home page).
If I were a Liberty Mutual insured/policyholder, I'd be wondering: how much did it cost to produce this hokum and how much more am I paying for my car insurance premiums because of it? Liberty's cute little lawyer bashing movie aside, let's focus on something substantive, like what you're actually buying with a Liberty Mutual auto policy and what exclusions Liberty is inserting in its policies that avoid responsibility for paying its own policyholders in Ohio auto collisions.
Here's a little exclusion that Ohio Liberty Mutual insureds might want to know about:
"We do not provide Liability Coverage for any 'insured' for 'bodily injury' to you or any 'family member.'"
What does this exclusion mean? If a family is in the Liberty insured "family vehicle" and Dad falls asleep and wrecks the car, seriously injuring his wife and kids, there is no liability coverage for Dad's negligent driving. It means that if Grandma and Grandpa allow grandson to drive their "insured vehicle" and grandson wrecks the car, injuring Grandma and Grandpa, there is no liability coverage for grandson's driving negligence.
Simple: exclusion means no responsibility to pay for family injury claims in the "insured vehicle."
Of course, there's no "movie" about all the fine print exclusions that some companies like Liberty Mutual have in their "full coverage" policies. How's that for "responsibility?"
P.S. Not all Ohio insurance companies have this exclusion. To find out more, order our book, FREE to all Ohio residents: "How To Buy Car Insurance In Ohio" (just click on the book cover on our home page).
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...
OHIO EMPLOYERS USED TO BE LIABLE WHEN THEY KNOWINGLY EXPOSED EMPLOYEES TO WORKPLACE DANGERS
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.
UNLESS YOU'RE HIT WITH A HAMMER BY YOUR BOSS YOU CANNOT NOW SUE YOUR EMPLOYER...
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."
OHIO EMPLOYERS USED TO BE LIABLE WHEN THEY KNOWINGLY EXPOSED EMPLOYEES TO WORKPLACE DANGERS
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.
UNLESS YOU'RE HIT WITH A HAMMER BY YOUR BOSS YOU CANNOT NOW SUE YOUR EMPLOYER...
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.
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...
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:
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.
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
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:
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.
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....
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....
Wednesday, February 24, 2010
Toyota Recall, Sudden Acceleration Deaths, Products Liability Lawsuits And Tort Reform--Who Benefits?
The answer: Toyota. Let's assume for the sake of argument that the Toyota vehicles' sudden acceleration problems are due to a "defective product" (a defect caused by improper design/testing, manufacture, or failing to adequately warn consumers of defects, problems etc). How would Ohio law treat these defects, Toyota's liability, and the families of the victims (at least 34 deaths have been attributed to sudden acceleration)?
Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.
Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?
Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.
Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.
Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.
What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.
Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.
So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.
Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.
And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?
The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.
Welcome to "tort reform." At the urging of the all automakers, The Manufacturers' Association, the insurance industry, big oil and tobacco, and led by The U.S. Chamber Of Commerce, we have had loads of "tort reform" in Ohio over the last 10 years. The reason? According to the Ohio Legislature, we need to give big business a break when it comes to lawsuits. Limited liability for these conglomerates was passed to increase competitiveness, create and keep jobs in Ohio, unleash the economy, etc--at least that's how tort reform was SOLD to The Ohio Legislature by lobbyists for these groups. The Legislature rushed to pass this legislation without a hitch. Fairness to victims injured by defective products? Sorry, but your legal rights had to take a back seat for the sake of "jobs" and Ohio's economy.
Now let's assume further that Toyota knew a few years ago that its vehicles were experiencing sudden acceleration problems and Toyota consciously ignored the problem, or decided initially to forego an expensive recall because it would cost too much money. What would happen if an Ohio resident were seriously injured as a result of a sudden acceleration and filed an Ohio personal injury lawsuit?
Courtesy of Ohio tort reform laws (Section 2307.80(C) and (D), if a Toyota car complied with MINIMUM government safety standards, Toyota would not be liable for punitive damages unless it fraudently withheld evidence of the defect from the National Highway Traffic Safety Administration (NHTSA), which is charged with ensuring that vehicles sold in the United States meet certain minimum safety standards.
Punitive damages are money damages assessed to punish a manufacturer for knowingly selling a defective product and blatently ignoring safety concerns. The theory behind punitive damage is simple: to deter companies from ignoring safety. It is well known that NHTSA sets minimum safety standards for vehicles sold in the U.S. The fact that any vehicle meets the minimum standards does not mean it is free of safety defects (remember the Ford Pinto and Explorer?). But courtesy of our business friendly legislature, meeting flimsy bottom basement government standards is a complete defense to Toyota's liability for punitive damages. Advantage Toyota.
Toyota also gets a break on the damages it would have to pay to Ohioans injured in sudden acceleration accidents. Enter Section 2315.18. Under this section, Toyota's liability for serious but non-catastrophic injuries would be capped at $250,000 to $350,000 (plus your medical bills and lost wages). So if a jury values your injuries at $750,000, the minute the jury leaves the judge must hack the verdict down to $350,000. Another win for Toyota.
What if it's proven that Toyota withheld evidence of the defect from NHTSA, thus making it liable for punitive damages? No problem, Section 2315.21 comes to Toyota's rescue. Toyota's liability for fraudulently withholding evidence of its defects is limited to two times what the jury returns for compensation for the victim's injuries.
Weren't wearing your seatbelt on a 1 mile trip to the grocery store when your Toyota accelerated and smashed into a tree at 84 mph? Section 4513.263(F) allows Toyota to introduce evidence of non-use of a seat belt for the purpose of reducing your damages.
So there you have it. Auto manufacturers get a discount on their liability for selling defective and unsafe cars in Ohio. Not only do injured Ohioans' rights take a back seat, to the extent they got taken for a nightmare ride in an out of control vehicle, they'll soon get taken for a legal ride as well if they sue and attempt to make Toyota accountable for its safety choices.
Of course, you won't read about any of Toyota's problems if you visit The Chamber of Commerce's website. But they have tons of stories and videos devoted to lawsuit abuse and goofball lawsuits. But for every goofball or frivolous lawsuit, there are legitimate lawsuits concerning dangerous products where safety is sacrificed for the almighty bottom line. And there's the dirty little secret that The Chamber won't touch with a ten foot pole.
And at the end of the day, the legal advantages in cases like this, courtesy of "tort reform," fall to the Toyota's of the world. And what about all the Ohio jobs these "tort reform" measures were supposed to create? How's Ohio's economy doing 5 years after Ohio big businesses were handed all these legal breaks?
The answer is obvious. "Tort reform" is nothing more than a camouflaged form of the classic bait and switch.
Tuesday, February 23, 2010
"Ice Storm" Frivolous Lawsuit Would Be Tossed Out In Ohio
A Massachusetts man sued the city of Windham, New Hampshire and the state for a 2008 collision at an intersection where the traffic signals were disabled. One large problem, however: electrical power at the intersection, and many others, was gone because of a huge ice storm that affected 1.7 million local residents.
I'm not sure what New Hampshire law says but in Ohio:
1. A non-functional intersection turns it into a 4 way stop where every driver needs to use reasonable care when proceeding through the intersection; and
2. Cities and The State Of Ohio are legally immune from liability even if they were negligent in fixing the signal, were too slow to fix it, or did not adequately warn motorists. There are limited exceptions to this rule but they don't appear to apply to these facts.
Sorry but I wouldn't touch this case with a ten foot pole if it came to me in Ohio. A major ice storm knocks out power to millions, two cars crash at a downed intersection and one of the passengers is blaming the state for the crash? Why didn't he sue his friend for not proceeding through the intersection--IN AN ICE STORM--carefully?
In fact, if this case were filed in Ohio law there's a good chance a judge might find it frivolous. In Ohio, a frivolous lawsuit or claim is one that (1)serves merely to harass or maliciously injure another party, or is for another improper purpose; (2)is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law; or (3) has no evidentiary support or is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Additionally, attorneys who file them can be forced to pay sanctions such as attorneys' fees. Surprisingly, many people demand laws against "frivolous lawsuits" unaware that states like Ohio have had laws outlawing them since the 1980's.
I'm not sure what New Hampshire law says but in Ohio:
1. A non-functional intersection turns it into a 4 way stop where every driver needs to use reasonable care when proceeding through the intersection; and
2. Cities and The State Of Ohio are legally immune from liability even if they were negligent in fixing the signal, were too slow to fix it, or did not adequately warn motorists. There are limited exceptions to this rule but they don't appear to apply to these facts.
Sorry but I wouldn't touch this case with a ten foot pole if it came to me in Ohio. A major ice storm knocks out power to millions, two cars crash at a downed intersection and one of the passengers is blaming the state for the crash? Why didn't he sue his friend for not proceeding through the intersection--IN AN ICE STORM--carefully?
In fact, if this case were filed in Ohio law there's a good chance a judge might find it frivolous. In Ohio, a frivolous lawsuit or claim is one that (1)serves merely to harass or maliciously injure another party, or is for another improper purpose; (2)is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law; or (3) has no evidentiary support or is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Additionally, attorneys who file them can be forced to pay sanctions such as attorneys' fees. Surprisingly, many people demand laws against "frivolous lawsuits" unaware that states like Ohio have had laws outlawing them since the 1980's.
Thursday, February 11, 2010
Is Your Long Term Acute Care Hospital Safe?
Yesterday The New York Times ran a lengthy expose` on patient safety concerns at long term acute care hospitals (LTAC's), specifically Select Medical Corporation, a for profit, publically traded company that operates 89 long term hospitals across the U.S. Many of these hospitals are known as "hospitals within a hospital," as typically entities like Select lease a floor of an existing hospital and set up their own separate hospital for patients' long term care needs.
The article is a must read for anybody considering a transfer of their loved ones to an LTAC facility. Interestingly, this article comes on the heels of a case we recently litigated against a long term acute care hospital arising out of the death of a ventilator dependent patient. As a result of that case, we prepared an article for consumers,reproduced in full below, entitled: LONG TERM ACUTE CARE HOPSITALS AND ARTIFICIAL AIRWAYS: WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW. Hopefully both articles will provide real guidance to families considering these facilities beyond their fancy brochures and websites touting their excellence...
LONG TERM ACUTE CARE HOSPITALS & ARTIFICIAL AIRWAYS:
WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW
Long term acute care facilities ( LTAC’s) in many ways are like hospitals: they care for critically ill patients who sustain strokes, brain injuries, and other serious conditions.
Frequently these patients are transferred to LTAC’s with artificial airways in place, such as an endotracheal (ETT) or, more commonly, a tracheostomy tubes. Because these patients are ventilator dependent, artificial airways are their “lifeline” for supplying oxygen to their vital organs. If artificial airways are dislodged or compromised for any reason, brain damage or death can occur within a matter of minutes.
LTAC’s must have clear guidelines in place as to how staff will respond to airway emergencies. However, in our experience, some LTAC’s give little thought to preventing airways from being dislodged, while others are unprepared to provide safe emergency airway management when airways become dislodged.
PREVENTING DISLODGED AIRWAYS
Airways can become dislodged during patient turning or repositioning when staff causes excessive tension on the airway tube or the ventilator tubing (which connects the airway tube to the ventilator). Surprisingly, some LTAC’s allow nurses’ aides to turn artificial airway patients without supervision of a nurse or respiratory therapist (RT). Whether the LTAC has a written policy mandating the presence of a nurse or an RT during patient turns is a crucially important question for patients’ families to ask LTAC staff. If there is no such policy, it is a red flag that the LTAC has not adopted a “prevention first” mentality to patient airway safety.
Equally important is whether the LTAC has policies to alert staff that a patient’s tracheostomy is “fresh” or new, commonly defined as one that is 7-10 days old. If a fresh trach becomes dislodged, it is a medical emergency requiring immediate action to restore an open airway and provide life sustaining oxygen. Some LTAC’s have written policies requiring “fresh trach” signage to be placed above the patient’s bed as an additional warning to staff. Lack of mandatory signage is another red flag that the LTAC does not fully appreciate the hazards associated with these vulnerable airways.
RESPONDING TO AIRWAY EMERGENCIES
“Airway management” is the process of ensuring that a patient has a patent or open airway for life sustaining oxygen. When an airway becomes dislodged, staff must act immediately to restore the airway. Obvious questions to ask staff are: Who are the first responders to an airway emergency? Does the LTAC have an in house physician to respond to an emergency at all times, or is troubleshooting this emergency delegated to in house RT’s?
If RT’s are the designated first responders, are they trained and competent to intubate patients – one of the most fundamental aspects of airway management? Intubation is the process of inserting a breathing tube into a patient’s mouth or nose and into their upper airway in order to provide oxygen to the lungs. Surprisingly, some LTAC’s do not train their RT’s to intubate, even when there is no physician-responder available on site.
An LTAC’s emergency response protocols are even more critical when a fresh trach becomes dislodged. The surgical hole or “stoma” in the trachea created by the original tracheostomy surgery will close rapidly if the tube is dislodged, because the hole has not matured. A serious risk of re-inserting any trach tube is misplacing it into the tissues surrounding the patient’s trachea, known as “false passage” placement. This results in forcing oxygen into the patient’s face, neck, and chest instead of the lungs, and is a serious and life threatening complication.
Because of this risk, some facilities have clear policies prohibiting RT’s from attempting to place any trach tube into a fresh trachea hole. Instead, many facilities require that RT’s call a “Code Blue” and provide oxygen through a bedside oxygen “AMBU” bag rather than attempt a risky emergency trach tube change.
Amazingly, some LTAC’s permit RT’s to attempt the dangerous practice of inserting a new trach tube into a fresh tracheostomy hole.
To summarize, any LTAC accepting patients with artificial airways should be prepared to answer the following questions:
1. Do you allow nurses aides to turn patients with airways with no nurse or RT supervision?
2. Do you require special signage above patients’ beds warning staff of a fresh or new trach?
3. Do you have a physician on hand at all times to respond to airway emergencies?
4. Are your RT’s competent to intubate patients who’ve lost their airway for whatever reason?
5. Do you prohibit your RT’s from re-inserting or replacing a dislodged fresh trach?
The more “No” answers you receive, the more likely the LTAC has not implemented practices that promote a culture of safety when it comes to protecting patients' artificial airways. Given that the maximum foreseeable harm of a dislodged airway is brain damage or death, there is no excuse for an LTAC’s systemic lack of preparedness when it comes to patient airway safety. Their lack of foresight should not expose your loved one to increased risks while recuperating from a serious illness.
The article is a must read for anybody considering a transfer of their loved ones to an LTAC facility. Interestingly, this article comes on the heels of a case we recently litigated against a long term acute care hospital arising out of the death of a ventilator dependent patient. As a result of that case, we prepared an article for consumers,reproduced in full below, entitled: LONG TERM ACUTE CARE HOPSITALS AND ARTIFICIAL AIRWAYS: WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW. Hopefully both articles will provide real guidance to families considering these facilities beyond their fancy brochures and websites touting their excellence...
LONG TERM ACUTE CARE HOSPITALS & ARTIFICIAL AIRWAYS:
WHAT PATIENTS AND THEIR FAMILIES NEED TO KNOW
Long term acute care facilities ( LTAC’s) in many ways are like hospitals: they care for critically ill patients who sustain strokes, brain injuries, and other serious conditions.
Frequently these patients are transferred to LTAC’s with artificial airways in place, such as an endotracheal (ETT) or, more commonly, a tracheostomy tubes. Because these patients are ventilator dependent, artificial airways are their “lifeline” for supplying oxygen to their vital organs. If artificial airways are dislodged or compromised for any reason, brain damage or death can occur within a matter of minutes.
LTAC’s must have clear guidelines in place as to how staff will respond to airway emergencies. However, in our experience, some LTAC’s give little thought to preventing airways from being dislodged, while others are unprepared to provide safe emergency airway management when airways become dislodged.
PREVENTING DISLODGED AIRWAYS
Airways can become dislodged during patient turning or repositioning when staff causes excessive tension on the airway tube or the ventilator tubing (which connects the airway tube to the ventilator). Surprisingly, some LTAC’s allow nurses’ aides to turn artificial airway patients without supervision of a nurse or respiratory therapist (RT). Whether the LTAC has a written policy mandating the presence of a nurse or an RT during patient turns is a crucially important question for patients’ families to ask LTAC staff. If there is no such policy, it is a red flag that the LTAC has not adopted a “prevention first” mentality to patient airway safety.
Equally important is whether the LTAC has policies to alert staff that a patient’s tracheostomy is “fresh” or new, commonly defined as one that is 7-10 days old. If a fresh trach becomes dislodged, it is a medical emergency requiring immediate action to restore an open airway and provide life sustaining oxygen. Some LTAC’s have written policies requiring “fresh trach” signage to be placed above the patient’s bed as an additional warning to staff. Lack of mandatory signage is another red flag that the LTAC does not fully appreciate the hazards associated with these vulnerable airways.
RESPONDING TO AIRWAY EMERGENCIES
“Airway management” is the process of ensuring that a patient has a patent or open airway for life sustaining oxygen. When an airway becomes dislodged, staff must act immediately to restore the airway. Obvious questions to ask staff are: Who are the first responders to an airway emergency? Does the LTAC have an in house physician to respond to an emergency at all times, or is troubleshooting this emergency delegated to in house RT’s?
If RT’s are the designated first responders, are they trained and competent to intubate patients – one of the most fundamental aspects of airway management? Intubation is the process of inserting a breathing tube into a patient’s mouth or nose and into their upper airway in order to provide oxygen to the lungs. Surprisingly, some LTAC’s do not train their RT’s to intubate, even when there is no physician-responder available on site.
An LTAC’s emergency response protocols are even more critical when a fresh trach becomes dislodged. The surgical hole or “stoma” in the trachea created by the original tracheostomy surgery will close rapidly if the tube is dislodged, because the hole has not matured. A serious risk of re-inserting any trach tube is misplacing it into the tissues surrounding the patient’s trachea, known as “false passage” placement. This results in forcing oxygen into the patient’s face, neck, and chest instead of the lungs, and is a serious and life threatening complication.
Because of this risk, some facilities have clear policies prohibiting RT’s from attempting to place any trach tube into a fresh trachea hole. Instead, many facilities require that RT’s call a “Code Blue” and provide oxygen through a bedside oxygen “AMBU” bag rather than attempt a risky emergency trach tube change.
Amazingly, some LTAC’s permit RT’s to attempt the dangerous practice of inserting a new trach tube into a fresh tracheostomy hole.
To summarize, any LTAC accepting patients with artificial airways should be prepared to answer the following questions:
1. Do you allow nurses aides to turn patients with airways with no nurse or RT supervision?
2. Do you require special signage above patients’ beds warning staff of a fresh or new trach?
3. Do you have a physician on hand at all times to respond to airway emergencies?
4. Are your RT’s competent to intubate patients who’ve lost their airway for whatever reason?
5. Do you prohibit your RT’s from re-inserting or replacing a dislodged fresh trach?
The more “No” answers you receive, the more likely the LTAC has not implemented practices that promote a culture of safety when it comes to protecting patients' artificial airways. Given that the maximum foreseeable harm of a dislodged airway is brain damage or death, there is no excuse for an LTAC’s systemic lack of preparedness when it comes to patient airway safety. Their lack of foresight should not expose your loved one to increased risks while recuperating from a serious illness.
Saturday, February 6, 2010
The Final Argument You'll Never Give
Medical malpractice cases are like a preparing for a marathon. Most take over a a year to get ready for trial. A recent one our office handled involved almost twenty depositions scattered all over the country. As the trial approaches, it becomes organized chaos. Cross and direct examinations, medical illustrations, lining up witmesses and subpoenas, exhibits, and the opening statement all must be prepared. What's more, there's always a flurry of last minute motions that you have to respond to. All this occurs at the same time when there are occasional last minute attempts to settle the case.
The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.
But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.
You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.
And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.
This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.
I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.
Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.
These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.
Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."
But I can still share some of it here. Consider it my gift to the Nutroll lady.
The crown jewel of any trial is final argument. It is the culmination and the synthesis of all the evidence. The attorney's final chance at persuasion. But any good final argument is never prepared at the end of the trial. You begin working on it before you ever file the lawsuit. You do this by getting to know the person on whose behalf the lawsuit is being filed.
But what happens in wrongful death cases, where you never get the chance to meet the victim? You have to do the next best thing. You meet with the family of the deceased, and you meet with them often. You listen to their stories about their mother or dad. It is a process like no other. It is painful, cathartic, there is laughter at all the funny and charming stories they share, and there are lots of tears. A box of Kleenex is a necessity. You go through all the photographs or videos that often yield valuable treasured moments about their loved one's life.
You store all this information in your memory bank so your clients and you can share these wonderful stories at trial. By the time the trial begins, you almost feel like you knew the person you never got to meet. More than anything else, you want your final argument to honor the memory of that person as best as you can. As much as it is delivered to the jury, it is equally a final gift to your clients.
And then, on the eve of trial, as happened in this case, it settles. No final argument. The final gift to your clients lies dormant, like an unpublished manuscript.
This most recent case involved a vibrant, selfless 78 year old wife, mother, and grandmother who died in a hospital due to a series of preventable medical errors. As I learned all about her life, and all the things she did for others--her family, her ill husband and her mother, all the neighbors she helped in so many ways, and all of her friends, one theme emerged and stuck with me: silent hero.
I intended to tell the jury that, it seems like our society is fixated on hero worship. But where do we look for our heroes? Too many of us look outward. Kids wear the latest sports jerseys with the names and numbers of athletes plastered on the back. Rock and rap stars occupy all the latest reality shows, showing off their excesses and austentacious lifestyles. We tend to idolize these "stars," and, yet, in the end, they never fail to disappoint us. All we need to do is pick the paper or turn on the TV for their latest scandals. They're like a cheap balloon. Transient and temporary. Eventually the air leaks out, or pops altogether.
Meanwhile, nestled in little corners of our local communities, there are people who, without any fame, glory, or recognition, give of themselves every day. Teaching a younger neighbor who's just moved in next door how to plant a garden, flowers, and roses. Checking in on an elderly neighbor down the street to make sure she has milk and bread and frequently fixing her TV remote because she's "electronically challenged." Showing up unannounced to a neighbor's or friend's back door with a pot of meatballs, soup, or her world famous nutrolls--just because that's who she was. And being there always for her adult children as the anchor or hub of a large, loving, close family.
These are our real heros. Old school heros with old school values. Silent heros, never seeking any limelight or recognition. These are the people our younger generations need to look up to and emulate. No expensive jersey required. Just an occasional hug is all they need.
Just a small part of what I intended to say for an argument that will never be delivered. That's OK. Now is the time for healing and looking forward, as Melville once said: "Life is best understood looking backward, but is best lived looking forward."
But I can still share some of it here. Consider it my gift to the Nutroll lady.
Wednesday, February 3, 2010
Hospital Whistleblower Lawsuit: Where The Drumbeat of "Defensive Medicine" Meets The Cowbell Of Fraud...
Those arguing for medical lawsuit "reforms" repeat over and over that doctors and hospitals are forced to practice "defensive medicine" because of a fear of lawsuits, which drives up the cost of healthcare, etc. What is often ignored by the medical and insurance groups pushing this argument is that some doctors and hospitals stand to gain financially from the very tests and procedures they love to label as "defensive medicine."
Recently, a Cincinnati hopsital agreed to settle a whistleblower lawsuit brought by a cardiologist and the federal government alleging a fraudulent "kickback scheme" where cardiologists' access to the hospital for heart procedures was allegedly based upon the revenue they generated for the hospital. And while Christ Hospital denied any sort of wrongdoing, it agreed to a whopping $100 million settlement with the government in order to reimburse Medicare.
You can draw your own conclusions from the fact of the settlement and, more importantly, the amount of it. These allegations, if true, show how a hospital's business model impacts patient care (more tests being run on patients), the hospital's bottom line, AND the cost of healthcare. After all, if hospitals are billing Medicare for more tests as part of some suspect billing or kickback scheme, what is that doing to our Medicare funds? (Depleting them is the right answer...).
Yet, this $100 million head turner of a settlement at one hospital will not get much attention from the politicos. They're too busy dragging out and continuing to beat the "trial lawyers are causing doctors and hospitals to practice defensive medicine" drum at every opportunity.
This piece of news is more like a small cowbell instead of a drum. And as we all know from the now famous Will Farrell Saturday Night Live skit, we all need "More Cowbell."
Wednesday, January 20, 2010
More Corporate Lawsuit Abuse: North Face Sues Tiny "South Butt" Clothing Line (I'm Not Making This Up)
Most of us cold climate folks have heard of the North Face Clothing line. Recently a biomedical student started a small clothing line in his spare time that parodied the North Face name. Proving that he had a sense of humor, he named his line "South Butt."
Big conglomerate North Face Clothing? Meet tiny, one man show "South Butt" clothing line. Tiny South Butt, meet North Face's team of lawyers and a lawsuit. North Face is suing the student for copyright infringment and other legal harms.
Experts interviewed in the article predicted that the lawsuit will probably go nowhere. In fact, it's likely to backfire. Not only does this frivolous lawsuit make North Face look petty and paranoid, it will probably result in more "South Butt" sales.
The irony here is that corporate America complains all the time about "frivolous lawsuits" that drive up the cost of goods. This lawsuit shows that corporations often file their own ill founded lawsuits and don't hseitate to hire their legions of lawyers to throw their weight around. So where's The Chamber Of Commerce on this laugher of a lawsuit? Why aren't they rushing in to defend this student like they did when the dry cleaner in Washington D.C. was sued for $54 million by a malcontent customer whose pants were lost (an equally stupid lawsuit)?
I could never pull the trigger on North Face clothes--a little to expensive for my tastes. This is an even better reason not to buy their line. Good luck, South Butt dude. Although apparently opposites do attract, here, in the form of a lawsuit, I hope NF gets some sense and drops this suit.
Big conglomerate North Face Clothing? Meet tiny, one man show "South Butt" clothing line. Tiny South Butt, meet North Face's team of lawyers and a lawsuit. North Face is suing the student for copyright infringment and other legal harms.
Experts interviewed in the article predicted that the lawsuit will probably go nowhere. In fact, it's likely to backfire. Not only does this frivolous lawsuit make North Face look petty and paranoid, it will probably result in more "South Butt" sales.
The irony here is that corporate America complains all the time about "frivolous lawsuits" that drive up the cost of goods. This lawsuit shows that corporations often file their own ill founded lawsuits and don't hseitate to hire their legions of lawyers to throw their weight around. So where's The Chamber Of Commerce on this laugher of a lawsuit? Why aren't they rushing in to defend this student like they did when the dry cleaner in Washington D.C. was sued for $54 million by a malcontent customer whose pants were lost (an equally stupid lawsuit)?
I could never pull the trigger on North Face clothes--a little to expensive for my tastes. This is an even better reason not to buy their line. Good luck, South Butt dude. Although apparently opposites do attract, here, in the form of a lawsuit, I hope NF gets some sense and drops this suit.
Thursday, January 14, 2010
Correction: Ohio's Medical "Tort Reform" Does Not Apply To Medical Malpractice Wrongful Death Cases
Recently a colleague of mine pointed out an error in my past blog posts discussing Ohio's "caps" or limits on what Ohio medical malpractice victims can recover in lawsuits. In those previous posts, I pointed out that the Ohio Legislature in 2003 passed laws limiting malpractice victims' recovery to arbitrary caps of anywhere from $250,000 to $350,000.
She said to me: "You forgot to mention that there are no caps or limits in cases of wrongful death." And she's right. The reason for this is that Section 19a, Article I of The Ohio Constitution states that damages recoverable in wrongful death claims
cannot be limited. Since The Ohio Constitution trumps any attempt by the Legislature to contradict it, The Legislature could not pass any caps in wrongful death cases.
So there you have it. I'm just glad someone was actually reading some of this stuff and paying attention.
She said to me: "You forgot to mention that there are no caps or limits in cases of wrongful death." And she's right. The reason for this is that Section 19a, Article I of The Ohio Constitution states that damages recoverable in wrongful death claims
cannot be limited. Since The Ohio Constitution trumps any attempt by the Legislature to contradict it, The Legislature could not pass any caps in wrongful death cases.
So there you have it. I'm just glad someone was actually reading some of this stuff and paying attention.
Sunday, January 10, 2010
Do We Need Any MORE PROOF That Medical Tort Reform Will Not Lower Health Care Costs? (But Here's More Proof Anyway...)
As I have said repeatedly, passing medical malpractice tort reform will do nothing to lower the spiraling costs of Ohioans' health care premuims. Two recent articles prove (again) how bogus this argument is.
The first is a December 17, 2009 internet article entitled "Medical Mutual Of Ohio's View Of Healthcare Reform, authored by George Stadtlander, its Chief Managed Care Officer. The article discusses the pros and cons of the current proposals in Congress, but this little ditty really caused me to rise out of my chair:
Really? What this article and Mr. Stadtlander did NOT mention is that we have had medical "tort reform" in Ohio now for over six years! Since 2003, there have been arbitrary caps or limits on what injured Ohioans can recover due to negligent medical mistakes. These caps range anywhere from $250,000 to $350,000 depending upon the circumstances. Essentially, your rights were sold as a way to keep healthcare costs down. In other words, limiting your rights in lawsuits was good for you and all Ohioans because you would pay less for health insurance. Sounds all well and good, right?
So, the question becomes: have these "reforms" worked to lower our insurance premuims? Interestingly, just one month before this article, The Canton Repository reported in a comprehensive piece that local businesses are being hammered with soaring healthcare costs.
Curiously, Medical Mutual has increased premuims 12-13%, according to Mr. Stadtlander, who was quoted in the Repository article:
The economy? The stimulus? Swine flu? Technology? Lung transplants? Aliens? (OK, I added that one). In other words, insurance companies can come up with any reasons they want to continue to increase premuims. And when they lobby for laws limiting the rights of Ohioans and continue to claim that these laws will bring down insurance premiums, we now have proof that it is a sham.
Yet, a majority of Americans favor "medical malpractice reform," and the paradoxical limiting of their own legal rights at rallies and town hall meetings. Perhaps someday they'll eventually wake up and realize that laws limiting their legal redress when a hospital has left a sponge or a towel inside them are potentially as noxious as limiting their Second Amendment right to carry a gun.
The first is a December 17, 2009 internet article entitled "Medical Mutual Of Ohio's View Of Healthcare Reform, authored by George Stadtlander, its Chief Managed Care Officer. The article discusses the pros and cons of the current proposals in Congress, but this little ditty really caused me to rise out of my chair:
Another huge issue in this debate is tort reform. There have been proposals for comprehensive tort reform that would reduce the cost of delivery, but they have been widely ignored.
Really? What this article and Mr. Stadtlander did NOT mention is that we have had medical "tort reform" in Ohio now for over six years! Since 2003, there have been arbitrary caps or limits on what injured Ohioans can recover due to negligent medical mistakes. These caps range anywhere from $250,000 to $350,000 depending upon the circumstances. Essentially, your rights were sold as a way to keep healthcare costs down. In other words, limiting your rights in lawsuits was good for you and all Ohioans because you would pay less for health insurance. Sounds all well and good, right?
So, the question becomes: have these "reforms" worked to lower our insurance premuims? Interestingly, just one month before this article, The Canton Repository reported in a comprehensive piece that local businesses are being hammered with soaring healthcare costs.
Curiously, Medical Mutual has increased premuims 12-13%, according to Mr. Stadtlander, who was quoted in the Repository article:
REASONS FOR INCREASES
Employees filing a greater number of costly claims in recent years is the reason some employers are seeing massive increases in premiums, said George Stadtlander, executive vice president for Medical Mutual.
Stadtlander said Medical Mutual has raised rates by an average of 12 to 13 percent — by as little as 5 percent and as much as 30 percent.
The health insurer executive said the economy could be playing a role. Many employees who have been laid off are younger, less senior workers who are healthier and file fewer claims. Those who remain are often older Baby Boomers more likely to get medical treatment.
Also, federal stimulus spending may be playing a role. The federal government is paying 65 percent of premiums under COBRA, the mandate that permits people who have been laid off to stay on employer group health plans for at least 18 months, normally at the laid-off workers’ expense. Stadtlander says those with medical problems are the ones that tend to sign up for COBRA.
And the swine flu has driven more people to doctor’s offices and hospitals and pushed up demand for prescription drugs, resulting in a higher number of claims, Stadtlander said.
AultCare has a different explanation. The Canton insurer’s spokeswoman, Robin Clark, blames not more claims, but rather the general inflation of health care costs.
She said AultCare has kept rate increases to well below 10 percent this year for the bulk of its policyholders, especially since medical providers in its local network charge less than providers in larger communities.
But Clark said small employers are more likely to see rates rise due to an expensive claim filed by one employee, because the impact of a single worker’s claim is magnified in a smaller pool.
One final reason, according to Stadtlander, is advances in extremely costly medical technology. Its greater availability is leading to more catastrophic claims of more than $250,000, he said.
“A lung transplant is an expensive procedure,” he said.
The economy? The stimulus? Swine flu? Technology? Lung transplants? Aliens? (OK, I added that one). In other words, insurance companies can come up with any reasons they want to continue to increase premuims. And when they lobby for laws limiting the rights of Ohioans and continue to claim that these laws will bring down insurance premiums, we now have proof that it is a sham.
Yet, a majority of Americans favor "medical malpractice reform," and the paradoxical limiting of their own legal rights at rallies and town hall meetings. Perhaps someday they'll eventually wake up and realize that laws limiting their legal redress when a hospital has left a sponge or a towel inside them are potentially as noxious as limiting their Second Amendment right to carry a gun.
Wednesday, January 6, 2010
Is There A Formula For Settling A Personal Injury Case?
In short, no. Occasionally, clients will ask: "I've heard that insurance companies will take your medical bills and multiply them by three to make their offer--is this true?"
Perhaps 15 or 20 years ago, this was not uncommon in our experience, although not an ironclad rule. However, times have changed. First, as jury verdicts started to trend downward in the mid-90's and beyond, this "rule" started to disappear. Second, many insurance companies invested millions for fancy computer modeling programs designed to ratchet down claim evaluations. Allstate, for example, invested multi-millions for a program known as "Colussus," which inputs "data" regarding an accident victim's injuries and bills, etc, and spits out an offer, frequently more pinched than a traditional "3 times" multiplier. Some people would characterize this as "garbage in, garbage out," but the point is that any rigid formula or equation for evaluating injury claims frequently doesn't hold water.
Here's why. There is a saying in our profession: each case sits on its bottom, so to speak. Two examples may help illustrate the point.
Example No 1: Two people suffer identical injuries in a collision--multiple fractures of both hands. One victim is a sales manager who works mainly at his desk. Despite his injuries, he's able to do his job. The other victim is a concert pianist for the local symphony and also gives private lessons. She is not only unable to perform in concerts and teach, but loses her job and substantial income.
Same injuries, but with different outcomes. Guess who has a more substantial claim? A rigid "formula" does not do justice to the pianist's claim versus the sales manager's.
Example No. 2: Again, two people suffer the same injuries in a collision--an odontoid fracture of the 2nd cervical vertebrae. The first victim was hit by a nice elderly lady coming home from church who slid thorugh a stop sign. The second was hit by a drunk driver who blew the stop sign at 68 MPH and blew a .225, over three times the legal limit of .08.
Same injuries, same amount of bills, same recovery. Guess who's claim is worth more? I can assure you that the claim against the drunk driver is potentially more valuable due to the egregious conduct of the drunk, which subjects him to possible punitive damages (money damages returned by a jury to punish a person for their reckless conduct).
There are numerous other examples of why simple formulas don't work. The only generalization is that each claim must be evaluated based upon its own unique facts and circumstances, and not on what Uncle Joe or the neighbor down the street received for their claim a few years ago.
Perhaps 15 or 20 years ago, this was not uncommon in our experience, although not an ironclad rule. However, times have changed. First, as jury verdicts started to trend downward in the mid-90's and beyond, this "rule" started to disappear. Second, many insurance companies invested millions for fancy computer modeling programs designed to ratchet down claim evaluations. Allstate, for example, invested multi-millions for a program known as "Colussus," which inputs "data" regarding an accident victim's injuries and bills, etc, and spits out an offer, frequently more pinched than a traditional "3 times" multiplier. Some people would characterize this as "garbage in, garbage out," but the point is that any rigid formula or equation for evaluating injury claims frequently doesn't hold water.
Here's why. There is a saying in our profession: each case sits on its bottom, so to speak. Two examples may help illustrate the point.
Example No 1: Two people suffer identical injuries in a collision--multiple fractures of both hands. One victim is a sales manager who works mainly at his desk. Despite his injuries, he's able to do his job. The other victim is a concert pianist for the local symphony and also gives private lessons. She is not only unable to perform in concerts and teach, but loses her job and substantial income.
Same injuries, but with different outcomes. Guess who has a more substantial claim? A rigid "formula" does not do justice to the pianist's claim versus the sales manager's.
Example No. 2: Again, two people suffer the same injuries in a collision--an odontoid fracture of the 2nd cervical vertebrae. The first victim was hit by a nice elderly lady coming home from church who slid thorugh a stop sign. The second was hit by a drunk driver who blew the stop sign at 68 MPH and blew a .225, over three times the legal limit of .08.
Same injuries, same amount of bills, same recovery. Guess who's claim is worth more? I can assure you that the claim against the drunk driver is potentially more valuable due to the egregious conduct of the drunk, which subjects him to possible punitive damages (money damages returned by a jury to punish a person for their reckless conduct).
There are numerous other examples of why simple formulas don't work. The only generalization is that each claim must be evaluated based upon its own unique facts and circumstances, and not on what Uncle Joe or the neighbor down the street received for their claim a few years ago.
Tuesday, January 5, 2010
New Website: How Does Your Hospital Rate?
Finally, Ohio has come out of the stone age. A new website launched by The Ohio Department Of Health will allow Ohioans to compare hospitals on a whole host of performance measures. For example, you can research hospitals' performance on a number of pateint safety measures like anesthesia complications, bed sores, and number of foreign objects left in patients during a procedure, just to name a few.
This is part of a nationwide movement to make a hospital's performance criteria transparent. Hospitals are required to submit data every six months or face a fine.
Of course, this data is dependent upon a hospital's willingness to keep accurate statistics and voluntarily report outcomes that might not necessarily paint them in a good light. But it is a vast improvement over data that Ohio consumers have had access to before--which is nothing.
Hospitals spend millions on PR ad campaigns touting the quality of care they provide. Now, at least, there is some criteria to measure against all the hype and feel good TV and radio commercials.
By the way, in 2008 The Cleveland Clinic left four foreign objects in patients during surgery. This doesn't make them a bad hospital--in fact, just the opposite is true. But it does show that even hospitals that provide "world class care" are capable of making preventable medical mistakes.
This is part of a nationwide movement to make a hospital's performance criteria transparent. Hospitals are required to submit data every six months or face a fine.
Of course, this data is dependent upon a hospital's willingness to keep accurate statistics and voluntarily report outcomes that might not necessarily paint them in a good light. But it is a vast improvement over data that Ohio consumers have had access to before--which is nothing.
Hospitals spend millions on PR ad campaigns touting the quality of care they provide. Now, at least, there is some criteria to measure against all the hype and feel good TV and radio commercials.
By the way, in 2008 The Cleveland Clinic left four foreign objects in patients during surgery. This doesn't make them a bad hospital--in fact, just the opposite is true. But it does show that even hospitals that provide "world class care" are capable of making preventable medical mistakes.
Monday, January 4, 2010
36,000 Reasons Why You Need As Much Uninsured Motorists' Coverage As You Can Afford
36,000 drunk drivers in Ohio. This figure does NOT represent the number of drunk drivers in Ohio in 2009. Here's the real jaw dropper: it represents the number of Ohioans with at least 5 DUI convictions since 1973!!! Recently, the Ohio Legislature passed a law to publish a public database of these drivers, only to realize that less than 1% of these drivers have made the list.
This figure is mind boggling to say the least. It illustrates, sadly, how serious of a societal problem drunk driving is. Now take this issue one step further and ask yourself: how many of these irresponsible people are carrying auto insurance to cover your injuries if you're hit by one of them? I can tell you from over twenty years of experience that the answer is: hardly any. Aren't they required by law to have insurance? Of course, but there are also laws against driving drunk as well and obviously these folks are ignoring it! Sadly, there are also ways around the mandatory insurance laws (like dropping coverage as soon as they purchase it).
The only way you can protect yourself and your family is to buy as much "uninsured motorists' coverage" as you can afford to buy. This coverage protects you if you get hit by a drunk driver that has either no coverage, or not enough to compensate you for your injuries. Our FREE book, "How To Buy Auto Insurance In Ohio," explains what you need to buy and how much you need to protect yourself. And you'd be suprised how cheap it is to really upgrade your policy.
Taking steps now to protect yourself will help you avoid financial disaster if you are on the unfortunate end of this situation. Given the staggering numbers of repeat offenders lurking on our roads, meeting up with a drunk driver in Ohio is more than just a remote possibility...
This figure is mind boggling to say the least. It illustrates, sadly, how serious of a societal problem drunk driving is. Now take this issue one step further and ask yourself: how many of these irresponsible people are carrying auto insurance to cover your injuries if you're hit by one of them? I can tell you from over twenty years of experience that the answer is: hardly any. Aren't they required by law to have insurance? Of course, but there are also laws against driving drunk as well and obviously these folks are ignoring it! Sadly, there are also ways around the mandatory insurance laws (like dropping coverage as soon as they purchase it).
The only way you can protect yourself and your family is to buy as much "uninsured motorists' coverage" as you can afford to buy. This coverage protects you if you get hit by a drunk driver that has either no coverage, or not enough to compensate you for your injuries. Our FREE book, "How To Buy Auto Insurance In Ohio," explains what you need to buy and how much you need to protect yourself. And you'd be suprised how cheap it is to really upgrade your policy.
Taking steps now to protect yourself will help you avoid financial disaster if you are on the unfortunate end of this situation. Given the staggering numbers of repeat offenders lurking on our roads, meeting up with a drunk driver in Ohio is more than just a remote possibility...
Sunday, January 3, 2010
Are Your Child's "Pranks Gone Bad" Covered By Your Insurance?
This case should serve as a warning to all you parents out there: your child's stupid pranks may subject you as parents to personal liability. In a recent Ohio case, some dimwitted high school students stole a target deer and spray painted it with profanities and the words "hit me." It gets worse. They decided to place the deer in the middle of a two lane rural road at the crest of a hill to see what would happen.
Sure enough, a car crested the hill, spotted the "deer," swerved to miss it...and ran the car into a nearby field. The driver and occupant sustained serious injuries. They sued the boys and their parents. The insurance company for the parents filed suit seeking a legal determination that the parents' homeowners policy did not provide liability coverage for the boys' actions or the parents because of an "intentional act" exclusion in the policy. Translated: if the boys as "insureds" under the policy were engaged in an "intentional act" due to their shenanigans with the deer, there was no coverage.
The court of appeals concluded that although the boys' actions in stealing and placing the deer in the roadway were intentional, "the disputed issue here is whether they also intended harm or injury to follow from their intentional act." Now a jury will decide this issue.
This was a close call and the Court's well reasoned decision was based in part on the language of the "intentional act" exclusion. If the policy were worded slightly differently, the Court may have concluded that the exclusion applied, meaning that the boys, and possibly their parents, would be personally liable to the injured occupants of the car.
So here's the take away from all this: remind your kids of this case and use it to educate them of the dangers of a juvenile prank gone bad. And let them know if they do something like this, you as parents could be personally liable for their stupidity.
Sure enough, a car crested the hill, spotted the "deer," swerved to miss it...and ran the car into a nearby field. The driver and occupant sustained serious injuries. They sued the boys and their parents. The insurance company for the parents filed suit seeking a legal determination that the parents' homeowners policy did not provide liability coverage for the boys' actions or the parents because of an "intentional act" exclusion in the policy. Translated: if the boys as "insureds" under the policy were engaged in an "intentional act" due to their shenanigans with the deer, there was no coverage.
The court of appeals concluded that although the boys' actions in stealing and placing the deer in the roadway were intentional, "the disputed issue here is whether they also intended harm or injury to follow from their intentional act." Now a jury will decide this issue.
This was a close call and the Court's well reasoned decision was based in part on the language of the "intentional act" exclusion. If the policy were worded slightly differently, the Court may have concluded that the exclusion applied, meaning that the boys, and possibly their parents, would be personally liable to the injured occupants of the car.
So here's the take away from all this: remind your kids of this case and use it to educate them of the dangers of a juvenile prank gone bad. And let them know if they do something like this, you as parents could be personally liable for their stupidity.
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