Reason No 72 For Ohio Drivers To Buy High Amounts Of Uninsured/Underinsured Motorists' Coverage

You may get creamed by a negligent Ohio driver with this language lurking in an auto policy:

"IN CONSIDERATION OF THE PREMIUM CHARGED FOR YOUR POLICY ITS IS AGREED WE SHALL NOT BE LIABLE AND NO LIABILITY OR OBLIGATION OF ANY KIND SHALL ATTACH TO U.S. FOR BODILY INJURY, LOSS OR DAMAGE UNDER ANY OF THE COVERAGES OF THE POLICY WHILE ANY MOTOR VEHICLE IS OPERATED BY____________."

How does this language find its way into an auto policy? Simple. Let's say a family has a family member with a horrible driving history. Typically, this involves a young driver who lives in the family household. He may have numerous speeding tickets, DUI's, and/or prior accidents. one of two things happens. The insurance company issuing the policy may conclude that the bad driver is too much of a liability risk, and demand that the driver is not covered under any policy issued to the household or the vehicles insured under the policy.

Secondly, the family itself might request that the family member be excluded because they don't want to pay the increase premiums for the driver, in order to obtain a cheaper insurance quote. Under either scenario, this exclusion will find its way into the policy. Translation? If this horrible driver creams you and puts you in the hospital, there's no coverage and no obligation for the insurance company to pay for your medical bills, lost wages, and injuries.

Ouch. In fact, double ouch. How do you avoid this mess? The only way you can protect yourself is to purchase ample amounts of "Uninsured/Underinsured Motorists' Coverage (known as "UM/UIM") FROM YOUR OWN INSURANCE COMPANY. If the bad driver is considered "uninsured" because of this exclusion, you can make a claim against your own insurance company for all of your losses. How much coverage should you carry? At least $500,000. The good news is that this coverage is CHEAP. I have had many clients bump their UM/UIM coverage from a standard (and insufficient) $100,000 to $500,000 for just over $100 per year!

We explain this in our FREE book: "Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy. You can order it by going to our website (www.n-wlaw.com) and clicking on the book.

Can An Insurance Co. Deduct Taxes From Your Ohio Auto Accident Lost Wage Claim?

So you want to handle your own personal injury case with the at fault party's insurance company? If you were injured in an Ohio auto collision and missed considerable time from work, it stands to reason that you have a right to recover for your lost wages. But what is the measure of your lost wage claim: your gross lost wages, or your net lost wages after taxes are withheld?

Insurance companies are famous for arguing that they are only obligated to pay your net lost wages, which of course means a 30% discount in many instances.

Insurance companies are dead wrong on this issue. Under Ohio law, a jury is instructed to consider the gross income of the injured person or decedent (in the event of a wrongful death) and not the net income after taxes and deductions.

That has been the law of Ohio for years now. But that does not stop insurance companies and adjusters from insisting, time and time again, that they are only responsible for paying an injured person's net wages. Why do they argue this in the face of clear Ohio law prohibiting this argument? Because they can, particularly if they are dealing with a person (or even an attorney) who is ignorant of Ohio law.

Remember, their goal is not "fairness" to you as the injured person. Instead, their goal is to close your claim as soon as possible and pay as little as they can get away with paying. Doesn't make them evil, but it doesn't mean you have to roll over and take it because they spout this nonsense or tell you that their "company policy" prohibits paying the gross amount...

Online Criticisms Of Physicians...Lawsuits Are Not The Answer

It's a brave new Internet world. There are scads of online ratings services that now allow you to rate and discuss your interactions with professionals, including doctors. One Minnesota doctor, who did not appreciate a scathing summary of his interaction with a patient, took the drastic step of suing the reviewer (the patient's son) for defamation.

A Minnesota judge who heard the case tossed it out, however, ruling that the reviewer's comments were opinions that were protected by the constitutional right of free speech:

In modern society, there needs to be some give and take, some ability for parties to air their differences. Today, those disagreements may take place on various Internet sources. Because the medium has changed, however, does not make statements of this kind any more or less defamatory.

First Amendment free speech considerations aside, as a practical matter, all this lawsuit did was bring more attention and negative publicity to the online review, and now this physician may be seen as someone who is not opposed to suing his own patients. The old adage "if you're in a hole, stop digging it deeper" applies here to playing the lawsuit card.

Because of the advent of online rating services and reviews, a cottage industry of "web defamation prevention" companies have sprung up. These companies offer "online management" strategies and "agreements" that patients sign promising not to post any review or comment about the physician. This raises the issue of whether positive online reviews of a physician can even be trusted as genuine, or are part of a strategy to elicit only favorable comments.

One the one hand, I can sympathize with any professional who is the target of a scathing, anonymous, online review. It may well be unwarrented, or done for vindictive purposes. But what is worse: resorting to a public lawsuit, or forcing patients to sign gag agreements as a pre-condition to receiving medical treatment? What kind of distrust does that foster in the physician-patient before you as a patient ever make it into the examining room?

On the other hand, a negative review might serve as a reality check if the professional's bedside manner or client communication skills are suspect or lacking. Lawsuits and secrecy agreements aside, the best antibiotic against a bad online review is an old prescription: take the time to be pleasant and thorough with patients or clients, and show some empathy for their worries at a difficult time. Treating people the way you'd want to be treated if you were in their shoes is the best any professional can do. And if a bad online review surfaces that does not accurately portray who you are as a professional, it seems to me that many satisfied patients or clients will agree in a heartbeat to post their positive exeriences with you.

In a world full of comment boxes and tweets, sometimes we make things way too complicated than they need to be.

What Happens After An Ohio Wrongful Death Verdict Or Settlement?

Short answer: a lot of oversight from the local Probate Court. Here's the deal: an Ohio personal injury attorney who brings a wrongful death lawsuit on behalf of the family of a deceased loved one actually represents the estate of the deceased person. The estate consists of the "next of kin," which means the spouse, children, siblings, and even more distant relatives as well. If there is a settlement of a wrongful death claim, it is for the estate, and not for any one person.

What happens next? Usually, the next of kin/beneficiaries will attempt to agree amongst themselves as to how any settlement proceeds will be distributed/divided. But even if all beneficiaries agree, it is not etched in stone.

Enter The Probate Court. Ohio's probate courts have jurisdiction over the estate of a deceased person, and this includes any wrongful death settlement. The Probate Court will review (1) the amount, and the fairness of, the settlement; (2) the appropriateness of any attorneys fees and expenses; and (3) whether the proposed amount of the settlement to each next of kin or beneficiary is fair and equitable. The Court has the authority to adjust or modify any distribution proposed by the family. A few examples might be helpful here.

WRONGFUL DEATH SETTLEMENTS

For example, if there is a wrongful death settlement of a deceased spouse/parent, who left a surviving spouse and minor children, The Probate Court will closely review how the proposed settlement is to be distributed to ensure that the minor child's monetary needs are taken care of, maintained, and preserved until (and even after) the child reaches 18 years of age. If any proposed individual amount is unfair to the minor, The Court has the power to adjust or modify the proposed distribution on behalf of the minor.

WRONGFUL DEATH VERDICTS

Same example, but let's assume that a jury returns a $1 million dollar verdict. In that case, the jury has the option to simply return a global or gross amount on behalf of the estate of the deceased person, or break it down individually between the surviving spouse and any children. Even in cases where the jury arrives at an individual breakdown of the $1 million verdct, The Probate Court still retains jurisdiction to approve or modify the final amounts to each beneficiary.

Why all this oversight? Ensuring a sense of fairness to all beneficiaries, especially in the case of minor children, adds an extra layer of protection to the process. And our fees and expenses should be subject to scrutiny as well, for the protection of the client.

Overall, Ohio wrongful death verdicts and settlements are highly regulated. And that's the way it should be.

Attorney Advertising Gone Bad...And A Lesson For Legal Consumers

The next time you see yet another attorney sales pitch on TV, think: Roni Deutch. Over the last few years, she was all over the airwaves, promoting herself as a tough, experienced "tax attorney" who was going to fight the IRS and save you lots of money.

Not anymore. According to this article, Deutch is closing her law office and surrendering her license. What's more, The California Attorney General's office has filed a $34 million lawsuit against her, claiming she ripped off clients and shredded over 2 million client documents.

The lesson here, if these allegations are true, is that attorney advertising talk sometimes doesn't match the walk and the puffery. Even more disturbing is that there is no way to measure an attorney's competence or trustworthiness from self laudatory, promotional ads.

It's easy to produce a bunch of slick ads if you have enough money. Just witness the explosion of personal injury attorney ads that flood the airwaves. If that's the route injury victims wish to choose, just dial the "1-800-money-for you" number and roll the dice. Or, you can do your homework, and ask for references and examples of an attorney's actual work product.

There's still room for an old school approach to selecting an attorney who will competently handle your legal claim.

Records? What Records? One Good Reason To Contact An Ohio Trucking Accident Attorney ASAP After An Accident

They're just a phone call away. A whole team of professionals--accident reconstruction experts, adjusters, and insurance company attorneys. When there is a serious large truck collision, frequently this team is on the scene within minutes or hours. Their purpose? Gathering physical evidence, taking measurements and photos/videos of skid and yaw marks, and plotting diagrams of the accident scene. Sometimes they arrive at an accident scene even before local law enforcement.

Often referred to as "rapid response teams," they've been assembled by trucking insurance companies in order to investigate collisions involving their insured commercial trucks. But the real reason these teams are deployed is simple: to minimize their risk and liability.

In addition to evaluating the accident scene, there is a truckload (pardon the pun) of other information and data that trucking companies gather and analyze. Things like drivers logs, bills of lading, fuel and toll recipts, dispatch, and driver computer records can yield valuable information as to driver location and violation of federal and state hours of service violations. More importantly, satellite tracking systems and GPS data can be matched and compared to paper records. Finally, ECM (Electronic Control Module) data contained in the tractor can often reveal vehicle speed, starts and stops, and the timing and type of any mechanical failures.

As you can see, the paper and electronic trail involving the operation of large trucks can be complex. The problem? Some of this information is subject to limits on how long a trucking company is required to maintain and keep it. For example:

Driver's record of duty status (logs) for day of and day after and thirty preceding days before the crash.

Retention period -6 months 49CFR 395.8

Messages to and from driver and vehicle for day before, day of and day alter the crash from satellite or cellular communications system and ten days preceding the crash:

Retention period -6 months 49 CFR 395.8

Dispatch or computer records for driver involved for day of crash and preceding thirty days - showing pick-up and delivery points and appointments:

Retention period - 6 months 49CFR395.8

Dispatch records - IFTA & IRP 4 yrs.

Driver payroll records or owner operators settlement for week of and week after crash and the preceding thirty days:

Retention period - one year

Fuel receipts and fuel filling records, toll receipts, maintenance receipts for equipment vehicle(s) involved in the crash for day of the crash and preceding thirty days:

Retention period - six months 49 CFR 395.8

Maintenance files and records:

6 months after vehicle leaves control of motor carrier 49 CFR 396.3

Lesson: trucking companies have the upper hand if you're the victim of a crash with a large truck. Don't expect them to do the right thing and preserve any incriminating evidence, particularly if you delay in seeking an experienced Ohio truck accident attorney or firm to represent you. After all, their motivation in dispatching a response team is not necessarily to document and preserve the truth.

Ohio Drunk Driving Case...And How Insurance Company Tries To Hang EVERYBODY Out To Dry

A recent Ohio car accident case (Caraman v. Bailey) really drives home how some insurance companies will stop at nothing to protect their money.

DRIVING DRUNK...FOR THE FOURTH TIME

A Progressive insured driver smashes into and injures another motorist, injuring her. He is intoxicated and leaves the scene. It's his fourth DUI and Progressive is aware of this. The injured driver (known as the "plaintiff") brings a lawsuit against the drunk driver,and includes a claim against him for punitive damages. Under Ohio law, punitive damages can be returned against an intoxicated motorist in addition to damages for the injured person's medical bills, lost wages, and physical injuries (the latter damages are known as "compensatory damages"). Punitive damages are designed to punish a wrongdoer for malicious or reckless behavior (like drunk driving), and are usually not covered in a standard Ohio auto insurance policy.

In other words, if you drive while intoxicated in Ohio and are sued, your insurance company may cover the injured person's "compensatory damages," but you are on the hook personally for any punitive damages a jury returns against you.

THUMBING THEIR NOSE AT EVERYBODY
So how did Progressive handle the claim and the lawsuit? First, it ignored the plaintiff's attorney's offer early on to settle the case for the drunk driver's policy limits--which were a paltry $15,000. Second, Progressive evaluated the claim by using a software program known as "COA" (read on to learn what this really stands for), which did not include or allow for the plaintiff's herniated disc and spinal cord compression as recognized injuries. However, it did apparantly "recommend" that the plaintiff's claim exceeded the value of their drunk driver/insured's policy.

Third, Progressive even ignored the pleas of the drunk driver's personal lawyer. He advised Progressive that their failure to offer the $15,000 limits was exposing the drunk driver--their own insured--to personal exposure in the form of a punitive damages verdict.

THE JURY SPEAKS

The case eventually marches to trial, and the jury returns a verdict of $20,000 in compensatory damages and $50,000 in punitive damages, thus exposing the drunk driver to $55,000 out of his pocket, when the claim could have resolved for the $15,000 limits.

The judge ruled after the verdict that Progressive failed to make a good faith offer to settle the case, tacked on interest to the verdict, and upheld the punitive damages verdict.

LESSON LEARNED

This case never should have seen the inside of a courtroom, and should have been settled well before it ever got to trial. Progressive essentially ignored everybody in this case--The Plaintiff's attorney, its own insured, and even its own "software evaluation system." It even left its own insured hanging out to dry by refusing to resolve the case and exposing him to huge personal liability.

Progressive dragged this out for one reason, in my opinion: to attempt to save a few thousand bucks. And now Progressive may be facing a lawsuit by its own insured for "bad faith insurance practices" for not resolving the claim and exposing him to losing his personal assets due to the punitive damage verdict he got tagged with.

We hear a lot about "frivolous lawsuits." Yet, when insurance companies take unreasonable positions in indefensible cases, you won't read about it in the local paper. I don't know what Progressive's "COA" injury evaluation software stands for, but I think I can guess: "Cover Our A___." In defense of Progressive, however, this conduct is not all that uncommon, unfortunately. There's plenty of COA to go around.

Texting While Driving--You Might As Well Be Driving With A Bag On Your Head

Much has been written lately about the dangers of texting while driving. My good friend and blogger extrordinaire Robert Mues has an excellent synopsis of the scope of the problem, and what states are trying to do to curb it, over at The Ohio Family Law Blog.

The numbers of crashes due to texting are staggering. In fact, he coined the phrase "intextication" as a means of relaying that, in many ways, texting while driving is just as bad as driving intoxicated. Recently, I have noticed a shocking increase in the number of young drivers who are messing with cell phones way too often while driving. The other night, as I was returning from my son's lacrosse came, a driver was riding too slowly in the left lane of the highway. When I passed her in the right hand lane, she was looking down at the screen of her cellphone with both thumbs on the pad.

I see this all too often. Although I like the phrase "intextication," I describe it as follows:"you might as well be driving with a paper bag over your head."

I also suspect that the problem is underreported in many crashes for the following reason. Assume a driver runs a light at an intersection while texting and injures a fellow motorist. The investigating officer does not ask the offending driver if he was texting at the time of the collision. The insurance company for the texting driver admits liability for the crash, knowing through their own internal investigation that their driver was texting.

If the injury claim is negotiated without a lawsuit being filed, the insurance company will never reveal that its insured/negligent driver was texting at the time of the collision. Instead, they'll simply admit that "our insured was at fault" in an affort to blunt any attempt to discover whether texting was involved in the crash.

If a lawsuit is filed, this tactic will be repeated. Any attempt to discover whether texting was involved will be fought on the grounds that, "gee, this is a witchhunt and a fishing expedition because we admit liability, so there's no need to get into any of this." And if the negligent driver is deposed and admits to texting, or his cellphone records are subpoeaned and texting at the time of the crash is proven, before trial the insurance company will file a motion to exclude evidence of texting on the grounds that because liability is already admitted, evidence of texting would be irrelevant and prejudicial.

Which circles back to the idea of "intextication." In the context of intoxication, in Ohio, an impaired driver can be liable for punitive damages for being "reckless"--knowingly driving impaired when it is more likely that a crash will occur. In this case, evidence of intoxication is admissible even if the insurance company for the impaired driver admits liability.

It remains to be seen if evidence of texting while driving is comparable to driving while intoxicated, in order to support a punitive damages case against the driver and admissibility of evidence of texting at trial. In my humble opinion, there's really not much difference between the two. This is the next legal battleground in the larger legal picture as technology races ahead, with all its permutations, and the law tries to play "catch up." Unfortunately, there will be many more crashes, injuries, and deaths in the meantime. OMG.

Is A Towing Company Liable For Death After Releasing Vehicle To Its Drunk Owner?

Suprisingly the answer is "no," according to a recent Ohio case.

A NIGHT OF DRINKING TURNS INTO TRAGEDY

A group of four young adults head to a college town for Halloween festivities. Accompanying the group was a night of marijuana and drinking. Early in the morning, one of the group noticed that there car had been towed. They located the car in the tow yard, and after paying the bill the tow company employee returned the keys to the driver, who was noticably intoxicated.

The group headed for home. You can figure out how this story ends. The driver wrecks the car and one of the passengers is killed. The boy's parents sued the towing company, claiming that the employee should not have relinquished the keys to the driver since he was intoxicated. What's more, it was revealed in the lawsuit that the towing company:

had on previous occasions "stalled" individuals who they believed were intoxicated from obtaining their vehicle from impound. On other occasions, they allowed allegedly intoxicated persons to obtain their vehicle but subsequently contacted law enforcement to report the vehicle's make, model, license plate, and direction of travel.

The legal issue in the case was: did the towing company owe a duty to "third persons" like the deceased passenger for harm resulting from the negligent conduct of another (in this case the impaired driver)? In other words, did the towing company give "substantial assistance or encouragement" to the driver by returning his keys?

The Court concluded that the towing company did not facilitate the driver's insobriety or drug abuse. Nor did it sell or provide him with the alcohol or marijuana he voluntarily consumed. Finally, the towing company took no part in the passenger's decision to take the risk of riding in a car with an impaired driver.

Quite simply, the Court was unwilling to impose a legal duty on the towing company when it had nothing to do with the group's intoxication and decision to ride in the car when they knew the driver was impaired. I wonder if the court's decision would have been different if the facts of this case were different. What if the towing company tossed the keys to an known, intoxicated driver who then crashed into another vehicle and injured an innocent family that was heading to church or school?
After all, the towing company had withheld keys from intoxicated owners in the past, which seems to me to be good common sense and sound policy...

THERE'S A LESSON IN THIS TRAGIC STORY...

There are a couple take away lessons here. First, I doubt that the driver had high levels of liability insurance to cover any injuries caused by his drunk driving. Second, if a towing company is not legally liable, despite releasing the car to an intoxicated patron, it may leave innocent motorists injured by the driver with no legal recovery. Under these circumstances, there's only one surefire way that innocent drivers can protect themselves: purchase high levels of Uninsured/Underinsured motorists' coverage--at least $500,000 or even a million. This coverage is cheap and allows you to pursue a claim against your own insurance company in the event you are on the receiving end of a series of bad decisions that cause you harm.

Behind The Curtain: What Insurance Companies Are Doing To Dilute Or Deny Your Auto Accident Claim

“We’ll work with you on your claim. We just need some information first.” This is the standard pitch an insurance adjuster will make to someone making a car accident personal injury claim.
How do I know this? Because many eventually become what I call “insurance company refugees”—folks who accepted in good faith the insurance company’s offer of “fairness,” only to become so frustrated that they were forced to pick up the phone and call me.

Here’s what may be happening behind the curtain while the injured person waits patiently for the insurance company to do the right thing.

1.Scouring Your Credit History

When you give the at fault driver’s insurance company your Social Security Number, it allows them to tap into many databases, including one known as CLUE. This is an insurace industry database that determines your insurance profile or "risk." If you have ever reported or file a previous insurance claim, it is probably in this database. Furthermore, if the insurace company is so inclined, they can search your credit history. What does that have to do with your injury claim? Nothing. But if your credit history is poor because you have heavy debt, it might make you vulnerable to a lesser offer.

2.Intercompany Arbitration

If your auto insurance company pays your auto accident bills, they will typically have a right of reimbursement from the at fault driver’s insurance company, known as “subrogation.” But your insurance company might secretly make a reimbursement claim against the at fault driver’s company by filing for “intercompany arbitration.” This is a private, voluntary dispute resolution mechanism set up amongst insurance companies. Unbeknownst to you, the at fault insurer may reimburse your insurance company, then turn around and argue that your injuries, and your medical bills, were not caused by the accident! A classic example of insurance companies wanting to “have their cake and eat it too.”

3.The Medical Audit

After the passage of weeks or months, the same company that has promised to “work with you” may have already sent your medical records and medical bills for a medical audit. This means that some medical group or physician (whom the insurance company hires on a regular basis) is reviewing your records to determine whether (a) your injuries were not caused by the collision; or (b) your medical treatment was excessive for your claimed injuries. If this review is favorable to the insurance company, you will be notified, about the same time you receive a low ball offer on your claim. On the rare occasion the review comes back in your favor, they will not share this information with you.

Remember these things the next time you’re bombarded with all countless insurance TV commercials touting all the fancy slogans and come ons…

Insurance Companies Using Technicalities To Avoid Paying Auto Accident Claims

"Frivolous lawsuits," allow me to introduce you to insurance company "frivolous defenses." A recent Ohio case shows the tactics insurance companies will employ to avoid paying Ohio auto accident claims due to specious "technicalities."

Quick facts: Driver is insured with "Nationwide Mutual Insurance Company." He is injured in a crash and brings a lawsuit against "Nationwide Insurance Company." As is required by Ohio law, his attorney attaches a copy of the "Nationwide Mutual Insurance Company" policy to his complaint.

Nationwide moves to dismiss the lawsuit, claiming that the plaintiff/injured party sued the wrong party--"Nationwide Insurance Company"--instead of the proper party, "Nationwide MUTUAL Insurance Company." The trial judge dismisses the case, buying into this technical argument. Thankfully, The Court Of Appeals reinstated the lawsuit, reasoning that Nationwide was on notice of the lawsuit and was not prejudiced by plaintiff's failure to include the "Mutual" description in the complaint.

The Court Of Appeals recognized that Nationwide's legal manuverings were much to do about nothing, and now the injured party will at least get his day in court. Not a very sexy opinion that's likely to make front page news, but it illustrates the efforts insurance companies will undertake to avoid paying on a claim. And, keep in mind, this was the injured party's OWN insurance company!!!

This case proves there is another side of the coin to the whole "frivolous lawsuit" debate. It's at least worthy of mention the next time you hear someone bemoaning the infamous "hot coffee" case.

The "Mrs. Jefferson" Solution To The Tort Reform Movement

I wish I had gotten her name. For the purposes of this post I'll call her "Mrs. Jefferson." She came up to me after a presentation I gave a few years ago on our civil justice system in Ohio. Actually, it was a debate.

On the panel was a local legislator, a physician, and me. They were advocating for various medical tort reforms, particularly the hard, one size fits all government imposed limits on what malpractice victims can recover in lawsuits. From my lonely perch at the end of the table, I explained that tort reform was a bad idea that really punishes innocent victims with legitimate cases of injury, and would do nothing to bring down health care costs. I argued that the only group that would benefit from arbitrary caps on damages would be the malpractice insurance companies.

It was a lively debate and it dovetailed into a discussion of frivolous lawsuits and what should be done about them. Although I probably lost the debate, like Rocky, I went down swinging...

Anyway, as it ended and I was packing my papers into my briefcase, Mrs. Jefferson approached me. She shook my hand, thanked me for talking to their group, and had this observation:

You know, it sounds to me like they need to crack down on those goofball lawsuits and leave the legitimate ones alone, because it might just be me sittin' in the wheelchair someday due to someone else's mistake.

She said more in one sentence than we did in an hour's debate equipped with talking points and fancy charts. And she's right: why punish those seriously harmed due to a preventable medical mistake with the socialistic notion that those very same individuals need to sacrifice their recovery rights for the good of the whole?

Mrs. Jefferson got it. Unfortunately, most people learn what a bum deal tort reform is for them (and individual constitutional rights) only after they're on the receiving end of a life altering, preventable mistake. It's like what Roy Rogers once said: "You never know how sweet the water is till the well runs dry." And, believe me folks, the well is running dry on your legal rights in Ohio and all over the U.S.

Hey Allstate, The Real Mayhem Is (Buried) In Your Auto Policy

We've all seen Allstate's "Mayhem" commercials. Pretty clever and somewhat humerous. The message is that mayhem lurks everywhere and an Allstate policy will sweep in and protect you. Here's the problem: Ohio personal injury lawyers like me have actually had occasion to read theirs and dozens of other auto policies (about as exciting as a dental cleaning, but it comes with the territory--it's what we do).

So let's test the accuracy of their marketing premise in the real world, borrowing from their theme.

I am an Allstate auto policy. You probably purchased me after seeing all of our clever commercials (no comment on how much we spend on advertising every year). You probably called an agent, who gave you a quote, asked you to fill out some paperwork, told you that you bought a "full coverage" policy, and I arrived in the mail weeks later. You stuffed me in the drawer with all your other "important papers."

But I am full of some mayhem of my own while I am sleeping in your drawer. Call it "fine print" mayhem. Here's what my fine print says: there's no coverage under my policy for "bodily injury to any person related to an insured person by blood, marriage, or adoption and residing in that person's household."

What does this mean? If you allow your son to drive your Allstate insured vehicle while you're a passenger and he wrecks the car, seriously injuring you, there's no coverage for his driving negligence, your lost wages, and your permanent injuries.

Basically it means this: if one family member wrecks the Allstate insured car and injures other family members, all Allstate "insureds," there is no coverage for anything but medical bills up to the limits of your Allstate "medical payments" coverage ( usually $5,000,assuming you bought medical payments coverage). So, if your family's medical bills are $200,000 take our $5,000 "med pay" coverage and multiply it by the number of family members with medical bills of $5,000 or greater and that's all we owe you. My little exclusion means no compensation for the rest of your family's losses.

Now here's what all the "Mayhem" commercials won't tell you. Many Ohio insurance companies, like Nationwide, Grange, Motorists, and Central Mutual don't have this exclusion! If you had one of those policies, all of your injured family's losses would be covered either under (1) the Liability or (2) the Uninsured Motorists' portion of the policy.

Mayhem can be sneaky, can't it?

To learn more about fine print exclusions in your policy before you ever need to use your insurance policy, visit our website
or our blog home page and order our FREE book: "Fully Exposed: How Ohio Insurance Companies Are Stripping Your Auto Policy."

Can You Make A Lost Wage Claim After An Ohio Auto Accident If You're Unemployed?

The answer at first blush might be "No." After all, a logical question might be: "How can you have a claim for lost wages if you weren't employed at the time of your crash?"

YOUR LOST EARNING CAPACITY IS THE KEY (YOUR GLASS IS HALF FULL)

What is "earning capacity?" It is income generated if a person employs his or her assets to their full capacity. Most all adults have some capacity to earn money. For example, let's assume you've been a medical technician at a local hospital for five years. You just lost your job due to cutbacks and you're in the process of applying for a new job. Duing this interim period, you're hit at an intersection by an 18 wheel rig that runs a red light. Given your injuries, you're essentially taken out of the job hunt for 6 months.

Do you have a legitimate claim with the trucking company's insurer for lost income even though you were not employed at the time of the collision? Ohio law allows injured persons to recover for their lost earning capacity. Here is the formula Ohio courts will use:

The measure of damages for impairment of earning capacity is the difference between the amount which the injured person was capable of earning before the injury and what he/she is capable of earning after the injury.

PROVING IT

Sounds great in theory but how do you get an insurance company to recognize/honor a claim? First, your past earnings history needs to be established as a baseline. Second, your treating physician needs to state in the medical records or in a report the time frame you would have been reasonably ordered off work due to your injuries, had you been working.

And, finally, you should make a concerted, good faith effort to find employment, whether it is related to your occupation/field or not, as soon as you are physically able. You need to show that you are doing everything possible to find work.

There may be room for argument as to the amount of your claim under these circumstances, but it does not mean you're entitled to zilch, especially if your earnings history was good and the timing of the crash was bad.


If you're "going it alone" after your collision and relying upon the insurance company to "treat you fairly" in this instance, you can be sure they'll tell you: "You can't make a lost wage claim because you weren't employed at the time of the collision." Not necessarily true. But don't expect the adjuster to explain the nuances of lost earning capacity income to you. My guess is there's some section in the "insurance claims handling procedure manual" that prohibits any discussion of this.

Read This If You're Thinking About Handling Your Ohio Auto Accident Claim By Yourself

This is what YOUR OWN auto insurance company can do to you after you're in a crash that's not your fault. Client's son, a passenger in a car, is seriously injured in a crash due to a friend/driver's negligence. Both the driver and the son's family have the same insurance company.

As a passenger in the friend's vehicle, the boy is eligible for medical payments coverage of $10,000, the limits of the driver's medical payments coverage. The insurance company pays the $10,000 limits on the first volley of bills. The boy's bills, however, greatly exceed $10,000.

The boy's family also had $5,000 in medical payments coverage on their family auto policy with the same company, meaning that there was an additional $5,000 immediately available to pay for additional bills. Problem: the insurance company never notified the family of the availability of this additional coverage under their own policy.

The insurance company holds on to the claim for over 1 year. No offer of settlement is made, despite promising to "work with" the family on resolving the claim. In the meantime, medical bills are pouring in, and, eventually, the family is turned over to numerous collection agencies, who are hounding the family for payment.

After all the frustration and delay, they hire me, and my first question to them is: "Were you even told by your insurance company that you were eligible for an additional $5,000 in coverage to pay some of these additional bills?" "Nobody told us any of that" is the response.

I immediately fire off a letter to the insurance company asking if they notified the family of the additional coverage, and it is admitted that not only was the coverage available, but it should have been offered. The ball was dropped, pure and simple.

Or was it? This is what can happen when folks with no experience in the nuances of insurance coverage or handling their own injury claim are left to deal with an insurance company or an adjuster with hundreds of claims. Perhaps this additional coverage simply got overlooked. But here's the ultimate problem: insurance companies often view the claims process as an adversarial relationship, even with their own insureds. It is not a relationship that lends itself to them asking questions like: "How can we help this family get through this" or "How can we be fair to them?"

More likely than not, their sole question is: "How can we get rid of this claim with paying the least amount possible?" That does not make them evil; it's their business plan. And it works. Just ask yourself: how many insurance companies went belly up in the worst economic meltdown since The Depression? When suspicion and saving money on a claim are motivating factors, and when nobody is truly looking out for the injured person's best interests, things like failing to notify insureds of additional coverage(THAT THEY PAID FOR) happen. And in this case, it was inexcuseable.

If the family was properly informed of this coverage over a year ago, many of these straggler bills would have been paid, with no bad implications for their credit rating. The take away lesson here is that if you're going to "go it alone" with an insurance company, you do it at your peril...

Bratz Sues Mattel For $1 Billion Over Barbie Doll Wars...While Congress Debates A $250K Cap In Medical Malpractice Cases

I couldn't make this up if I tried. Looks like Barbie is about to be hauled back into court in the latest nauseating sequel of a never ending legal war pitting Mattel versus the maker of the rival "Bratz" doll. I wrote about the original "Barbie v. Bratz" legal skirmish ("Doll Wars") here. Round one went to Mattel/Barbie, which was awarded a $100 million jury verdict against MGA/Bratz because MGA misappropriated ideas for doll designs from Mattel.

Well, get ready for "Doll Wars II-Bratz Girls Strike Back." According to Courthouse News Service, MGA/Bratz is now suing Mattel for $1 billion, claiming violations of Antitrust laws and other evil corporate misdeeds. According to the lawsuit:

The Barbie doll was so threatened by the success of the Bratz doll that Mattel launched an abusive campaign to "Kill Bratz," violating antitrust laws and suing MGA Entertainment "to death," MGA claims in Federal Court. So virulent was the attack, MGA claims, that Mattel used industrial spies with false IDs, intimidated and threatened Bratz vendors, and "spread press releases that Bratz sexualizes girls and that Bratz dolls say the 'F' word (which they do not)."

Did I mention that nobody could really make up this stuff? What's more, MGA alleges that Mattel spent $270 MILLION in attorneys fees to destroy MGA and "kill Bratz" with a scorched earth litigation strategy.

I couldn't help but juxtapose the latest Doll Wars legal skirmish against the latest push in Congress to limit malpractice victims' recovery to $250,000. So let's juxtapose, shall we? Never ending billion dollar lawsuits, and $270 million in attorneys fees dedicated to denigrating plastic dolls that carry neat little outfits and that may or may not throw F bombs. Meanwhile, if a doctor mistakenly removes a woman's non-cancerous breast, or a hospital mistakenly overdoses a child and renders her comatose, either's lifetime of misery is liquidated to $250K.

What do we call this current state of affairs? The way things ought to be, according to The Chamber Of Commerce. After all, we need to reign in malpractice lawsuits and all those predatory lawyers, right? But when it comes to corporations hiring armies of lawyers to sue each other into oblivion, we need a robust, hands off legal system so businesses can fully enforce their contract and property rights. Sounds great if there's an "Inc." after your name. But for all you "ordinary folk" out there who fall victim to malpractice, you need to sacrifice your rights and your recovery for the collective good of society. Consider your diluted legal rights an act of patriotism that will create jobs. This is what The Chamber is selling right now with the $250K cap that Congress is considering.

No word yet on whether Barbie or any of The Bratz Girls will testify at trial. My advice is to avoid the skimpy outfits, wear muted colors, and avoid the F bombs when taking the stand. I'm sure both of them will get their days (or should I say years) in court. Malpractice victims? The line from an old Wendy's commercial comes to mind: "Step aside."

Finally, A Conservative Politician Speaking The Truth About Medical "Tort Reform"

Hear that sound? It is, FINALLY, the rush of fresh air clearing the room of a stale, stenchy debate over medical "tort reform" that has festered for too long. Former Senator Fred Thompson has weighed in on the fallacy of the medical/insurance industry's never ending fixation on limiting the rights of Americans through restrictive caps on damages in medical malpractice cases.

In his op ed piece, he cuts to the heart of the "medical tort reform" debate: that government imposed caps on damages are anything but a "conservative" principle:

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal

.

You have to wonder why hard core conservatives or Tea Partiers, who supposedly revere The Constitution and espouse "limited government," seek to impose one size fits all caps on damages in all fifty states, and trample the Seventh Amendment right to trial by jury. As a matter of conservative principles and logic, hard caps simply make no sense.

So why are Republicans making federally imposed caps the centerpiece of their health care reform? He subtly hints at the reason:

"I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong."

Translated, the American Medical Association, The Chamber Of Commerce, and the insurance industry have been clamoring for it for years, and they heavily support the same politicians who are currently pushing for these laws.

So much for "conservative values" or the sanctity of The Constitution. Instead of adhering to either, the "cap your rights" gang in Congress is borrowing a slogan straight out of the movie Jerry Maguire: "Show us the money...and we'll give you what you want."

Warning: Sago Palm Plant May Be Deadly To Children And Pets

If you have small children or a family pet, you may want to read this. Scary.

A colleague of mine has recently reported that a decorative indoor Sago Palm plant, purchased at a Home Depot, was responsible for liver toxicity in a dog when the dog ate some of the plant's nuts. The vet bill exceeded $10,000.

Bad enough if you have a family pet. But the real shocker is that this plant is extremely poisonous to humans as well. Just google "sago palm toxicity" and you'll find lots of information, including this:

The plant is called a Sago Palm and its highly poisonous to both pets and humans. A chemical in the plant called cycasin is toxic and often causes permanent liver damage as well as neurological damage if enough of the poison is absorbed by the body. The seeds are the most poisonous part of the plant and the effects on humans are seizures, coma and death.

Of course you and I wouldn’t just yank off a chunk of this plant and gnaw on it but the seeds are colorful so if you have kids and Sago palm in your yard educate them on the danger or get rid of the plant.

Another article suggests that dogs are strangely attracted to this plant as well.
My colleague, Ray Critchett, poses a good question: "Should companies and stores who sell this plant be required to place a warning label on them to the effect that they are poisonous to pets and children?"

Those of us who have raised small children or have pets know that both can put things in their mouths or ingest anything within reach in a split second, even if closely watched. I recall, fondly now, our childrens' attempts as toddlers to eat the dog food in the bowl on the kitchen floor.

Dog food is one thing. A plant seed or nut that can kill children and pets is quite another. And from what I've read, there are little to no warnings accompanying these plants. This is stupid and irresponsible from both a safety AND a legal standpoint.

I can't imagine losing a child or the family dog over a simple plant in the corner of the room. So spread the word.

Dennis Kucinich's Olive Lawsuit: Is It The Pits?

Here we go again...more fodder for the lawsuit bashers...

CNN is reporting that Dennis Kucinich has filed a $150,000 lawsuit against a cafeteria for a rogue olive pit that he bit into as he was eating a sandwich wrap. Apparently he needed some dental work and some surgery as a result of the dental trauma.

We all know what is going to come from this, Conan, Letterman, and Leno jokes aside. Groups like The Chamber Of Commerce will jump on this like hyenas on a carcass, like they always do, when one of these lawsuits hits the media. They'll assail it as another example of someone trying to hit the "litigation lottery" and drag the lawsuit papers around as another poster child for much needed "legal reforms."

Unfortunately, Mr. Kucinich has given them some gratuitous ammo with this lawsuit. But let's break this down as best we can from the scant information we know. First, there is a possiblity that the pit should never have been in the wrap he was eating. Let's assume it had no business being there and was a mistake.

If he did require extensive dental work due to this mistake, certainly he would be entitled to recover the cost of the procedures, and the pain and inconvenience associated with it. I think most people would agree with that. So far, so good, but...

Where this lawsuit will start to smell, however, is the claim in the complaint for $150,000. First, there was no need to ask for a specific amount of money in the complaint. His attorneys could have included a short paragraph in the complaint that requested "that he be awarded a sum of money to compensate him for the past and future costs of any necessary medical or dental expenses, and the the pain and inconvenience associated with the dental trauma and the multiple procedures" and left it at that. In fact, in many states, like Ohio, we are prohibited from asking for an amount in the complaint that exceeds $25,000.

My guess is that if a specific monetary amount was omitted from the complaint, it would not have made news on CNN's website. Or, if it did, the story would have died as soon as it surfaced.

But the demand for $150,000 will be the proverbial gas can that ignites a fire of criticism, and will become fodder or a symbol of yet another "excessive lawsuit." Totally unnecessary in my humble opinion, as the hit Mr. Kucinich will take from it, and the misperceptions of our legal system it will generate, far outweigh the utility of asking for that amount. This is especially true given the fact that the amount sued for often times is not reflective of what the case may settle for, or what a judge or jury returns in the form of a verdict.

I don't know who said "All press is good press," but with any maxim, there are usually truckloads of exceptions.

I'm sure I'll hear about the "olive pit" lawsuit, right next to the "hot coffee" case, when I pick my next jury.

The Chamber, Lawsuits And Jobs: If Only The Truth Mattered...

Every Superman has his kryptonite. Take, for example, the monolith known as The U.S. Chamber Of Commerce, considered to be Superman by some and a bully by others.

"Jobs, not lawsuits." This is their mantra. According to the StarChamber, our legal system kills jobs. Less lawsuits equals more jobs.

It's a simple and attractive premise. It's an easy message for The Chamber to disseminate in a never ending cycle of rinse, spin, and repeat through website videos, press releases, "reports," and e-mail alerts.

Their solution? Massive legal "reform." It's an "all you can eat" appetite for reform with a wish list as long as the Kardashian kids' Christmas list. At the top of the list are one size fits all, government imposed caps or limits on damages you can recover if you're maimed by a drunk driver, have the wrong organ or limb removed during surgery, or ingest tainted food or drugs. "Govermnent--bad. Government imposed legal reforms--good."

Now for the kryptonite. For the last decade, The Ohio Legislature has done the Chamber's bidding. It has passed lawsuit limits on all Ohio personal injury lawsuits, including nursing home, medical malpractice, and products liability cases, and even cases where Ohioans are injured by drunk drivers. We also have punitive damage limits in all cases too. A "model" of tort reform that the Chamber would be very proud of. The Ohio Supreme Court has upheld the constitutionality of virtually all of these reforms.

And now we also have some solid court statistics coming from The Supreme Court Of Ohio. And the numbers are illuminating:

STATISTICAL BREAKDOWN OF CIVIL CASES IN OHIO COURTS

2009
Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 109,346 14.52%
Foreclosures 99,199 13.18%
Products Liability 263 0.03%
Professional Torts 1,705 0.23%
Civil Torts 27,666 3.67%
Workers' Comp. 8,698 1.2%
All Other Civil Cases 506,007 67.21%
Total Civil Cases 752,884 100.00%

(Sorry, but I could not get these columns to line up and gave up after 47 or so attempts)

Compare these numbers to 2002, shortly before The Ohio Legislature passed the beginning of many of The Chamber's lobbied for reforms. Notice the HUGE drop in "personal injury" type lawsuits (in bold) in 2009 as compared to the "pre-reform"
numbers in 2002:


Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 106,313 16.36%
Foreclosures 59,719 9.19%
Products Liability 629 0.10%
Professional Torts 3,448 0.53%
Civil Torts 45,020 6.93%.Workers' Comp 8,707 1.34%
All Other Civil Cases 426,069 65.56%
Total Civil Cases 649,905 100.00%


So there's no confusion, here are some definitions of the types of cases shown above:

Civil Torts – Suits brought by a party to recover for personal injury or property damage. These do not include claims based on a breach of professional (e.g. medical or legal) duties by professionals, and also exclude claims for products liability, workers’ compensation, and claims for civil rights violations.
(This would be your average auto accident, slip and fall, etc type lawsuit)

Eviction/F.E.D.* – “Forcible Entry and Detainer.” A summary proceeding initiated under R.C. 1923 or 5321 for restoring possession of real property to one who is wrongfully kept out or is wrongfully deprived of possession, including suits by landlords to evict tenants.

Foreclosures – Actions involving or arising from the foreclosure of property, usually resulting from an alleged default by a homeowner on a mortgage.

Other Civil Cases* – Civil actions not included within any of the other listed categories, including contract claims, small claims suits, and suits designated at “other civil” by the county, municipal, and state courts.
(For example, one business suing another business for a breach of contract, for example)


Products Liability – Actions based on an allegation that a product with manufacturing, design, or warning defects caused personal injury or property damage.

Professional Torts – Civil tort actions based on the alleged failure of a professional to act in accordance with a professional standard of care.
(Not limited to medical malpractice cases, and would include claims against architects, engineers, accountants, attorneys, and other professionals)



What do the numbers tell us? Foreclosures, kicking people out of leased properties, and business to business lawsuits constitute about 81% of all civil lawsuits. Since the enactment of endless "reforms," all personal injury lawsuits in Ohio have decreased by approximately 50%!

Ohio's population is approximately 11 million. Yet, we had a mere 1,705 professional liability lawsuits and a paltry 263 products liability suits in 2009. Does this sound like a litigation explosion or a state bogged down with "too many lawsuits?"

Conclusion: personal injury lawsuits are trending down precipituously every year. But according to the Chamber, if lawsuits have dramatically dropped, it stands to reason that jobs should be exploding in Ohio, n'est pas?

So where are all the Ohio jobs created by tort reform? How does "less lawsuits, more jobs" sound now? Ohio's economy is reeling, unemployment has never been higher, and the dreaded "personal injury lawsuits" are dropping significantly every year.

Perhaps the Superman analogy was a bad one after all. The more I think about it, The Chamber's drivel is more akin to Linus waiting for The Great Pumpkin.

In the meantime, our legislature has traded your legal rights for this rickety promise. So put your heavy coats on as you sit in the pumpkin patch waiting for all these jobs. It gets cold here in the Fall, and from the sounds of it you're going to be there a while...

California Insurer's 59% Rate Hike Exposes Fraud Of Proposed Malpractice "Reforms"

I think it was Mark Twain who said: "A lie can travel twice around the world before the truth can get its pants on in the morning."

In the recent health care debate, Republicans have maintained, as the centerpiece of their proposals, that enacting government imposed, one size fits all "caps" or limits on malpractice lawsuits will dramatically decrease health care costs and premiums. In broken record fashion, they have repeated this canard, as if federalizing state malpractice laws(the very government intervention they otherwise loathe at every turn), is the magic elixir that will solve our escalating health care costs.

Except that there's one major hole--better yet a crater--with this argument. Better yet, there's 32 holes to be exact. At least 32 states have already passed caps on malpractice damages that victims can recover. So we have some history and some data to test this insurance friendly hypothesis.

The biggest crater of all is California. In approximately 1975, it passed a $250,000 cap on "non-economic" or pain and suffering damages. Translation: lose your limb, an organ, or the ability to walk, talk, or function, and your lifetime of misery is reduced to an arbitrary $250,000.

California's caps are often cited as a "model" reform for politicians who seek to impose government imposed caps on all 50 states. So it stands to reason: if there is a direct relationship between capping malpractice damages and health care costs and premiums, why on earth is Blue Shield, California's largest insurer, seeking to hike premiums by 59%? Here's their official reason:

"...our individual market medical costs are rising rapidly due to higher provider prices, increased utilization, and the fact that healthier people are dropping coverage during a bad economy..."

That, plus good old fashioned greed, and friendly laws/regulations allowing such rate hikes, is probably the real motivation. But this story proves what those opposed to the magic wand of lawsuit caps have been arguing for years: the health care cost conundrum is due to a multitide of factors, the main one being that people are living longer, and therefore are utilizing health care resoures longer.

I have yet to hear one person in the media ask any politician this simple question: "If caps on damages are the answer to dramatically reducing health care costs, can you show me one state where health care costs have been reduced by one penny in the 32 states that have passed these caps?"

Anyone? Anyone? Mr.Buehler.....? Yet, this lie is repeated over and over on Sunday talk shows and on the floor of Congress as if it is a truism. Meanwhile, California consumers are about to get soaked in one of the most classic "bait and switch" tactics around right now: caps and reduced health care costs.

Drive Thru Barn Not The Greatest Business Model...And A Lesson About The Importance of Uninsured/Underinsured Motorists' Coverage

From the "incredibly stupid idea" department...

According to a recent Texas lawsuit, Don's Fly-Thru Beer Barn was a drive-in bar "complete with carhops where drivers enter the establishment by driving their vehicles into a building and then they are sold alcohol while still inside their car." Worse yet, patrons were "allowed to drink and drive right out of Don's Fly Thru Beer Barn with their alcoholic beverages in hand."

Brilliant business model, eh? (It's up there with the "Bag O'Glass" childrens' toy made famous by the Saturday Night Live skit with Dan Aykroyd aka "Irvin Mainway"). All kidding aside, a patron there was allegedly sold a "30 pack" of beer (seriously-there is such a thing?), drank enough of it there to get hammered, and drove away...killing one motorist and paralyzing another.

MANY SUSPECT BUSINESSES LIKE THIS DON'T CARRY INSURANCE..

A lawsuit waiting--no SCREAMING--to happen, and for good reason. If the facts of the lawsuit are true, this despicable establishment should be sued out of existence and shut down. But here's the problem. Most likely, this joint probably had no liability insurance to cover its stupidity. And I'd also wager that neither did the drunk driver. Thus. the families could be stuck with a 7 figure, uncollectible verdict against these miscreants.

The teaching point here is that there are many irresponsible businesses out there like drive thrus, bars, and strip clubs, who sell alcohol irresponsibly to people who are equally moronic when they get behind the wheel. The only way you can protect yourself as a motorist is to buy as much uninsured and underinsured motorists'(known as UM/UIM) coverage as you can afford to buy. This is the most important coverage you can buy for your auto policy. Why? Because it allows you and your family to pursue a claim against your own company when someone with little or no insurance injures you.

THE ONLY ONE TRUE WAY TO PROTECT YOUR FAMILY (AND DON'T EXPECT YOUR AGENT TO EXPLAIN THIS THOROUGHLY TO YOU...)

Most insurance agents do a poor job of emphasizing the importance of this coverage. And here's a secret you won't likely hear from your agent: you can probably upgrade your standard, lousy "full coverage" $100,000 auto policy to $500,000 or even $1 million in UM/UIM coverage for about $150 per year.

That's about half the cost of a monthly 30 pack...

Why Preparing Clients For Deposition Is Like Making Pancakes

What is the one HUGE secret for making fluffy pancakes that rise like they should, as opposed to those paper thin, dense duds devoid of any texture or sponginess? And, by the way, as a long time weekend pancake slinger, this secret applies to homeade recipes (my usual choice) all the way down to the instant "just add water" mixes.

The secret? Don't overwork the batter and DO NOT stir the lumps out of the mix. Simply add enough liquid (per whatever directions you're following) to dissolve the dry batter and gently fold the liquid in. Within a few seconds, you'll have enough consistentcy to be able to spoon or ladle a lump-filled blob of batter onto your griddle or into your pan. And then watch them slowly puff up and rise, in airy like, glorious fashion.

Not too long ago, I came to the conclusion that preparing our clients for deposition is a lot like making pancakes. We hit clients with all these pre-deposition rules like "don't guess," "don't ramble," "answer only the question you're asked and don't volunteer anything," etc. I could go on and cite about 15 more "rules" we've all learned over the years and have bludgeoned our clients with from time to time.

But in the process of our drill seargant/paranoid recitation of all these "rules," we can inadvertantly turn our clients into robots at their deposition. We've wrung all the humor and charm right out of them. They come off flat, worried, walking on eggshells for fear of making one of those dreaded "mistakes" we warned them about over and over. And, occasionally, we have the audacity to wonder why our clients' pre- deposition charm and endearing qualities did not come through at their deposition.

Simple: we overstirred them, just like the lifeless, tasteless pancake where the batter was overworked to death in the bowl. We failed to step into their shoes and realize that, from their perspective, a deposition can be a scary process. They want to go through a 2-3 hour question and answer session with a strange (as in unknown OR odd, take your pick) lawyer about as much as their upcoming root canal or colonoscopy. At least with the latter you have some form of sedation, which may drop a deposition to third place on the list...

Look, going over depositon rules is important and should not be ignored. But we as trial lawyers also need to recognize, and appreciate, that there is a class of clients whose charm, pleasant demeanor, grace, humor--whatever those qualities may be--need to come forward and be seen by the other side. They have wonderful stories to tell, and yes, they may ramble or break a few of our precious rules to remember, but creating a "roboclient" from scaring the pants off of them is infinitely worse in my opinion.

Bottom line: every one of us comes with "lumps" in some form. By deposition time, you need to know whether your client will need a lot of "stirring," or just a little. Counterintuitive as it may seem, both with clients and pancakes, consider leaving some of the lumps in. Remember: you can send a stack of flat pancakes back to the kitchen, but you're stuck with a flat transcript and client impression.

Keep Playing Your Music...Whatever It Is...

Writing a blog can sometimes be like the job description for the Dunkin Donuts dude ("Time to make the doughnuts!") After plugging along with mine for close to three years now, I have a newfound appreciation for writers of all stripes, cartoonists, comedians writing daily copy, journalists--anyone who produces the written or spoken word under the rigors of a regular deadline.

With my "5 Horsepower" (made in the U.S.A., I'll have you know) blog in a small corner of the Internet, sometimes there's not much to write about from a legal standpoint. Some of it can be rather boring at times. And, sometimes, you just don't feel much like writing at all. You hit a wall, a lull, and sometimes you wonder as you write: does anybody really care about what you're pontificating about anyway? Does it really contribute in any meaningful way to The Internet world of knowledge, or is it merely a click or a glance in passing by surfers constantly moving and trolling for whatever they're looking for? An online "drive by" akin to a glance in a bar or an airport.

Hell, nobody pays me to write it. I do it because I have this wierd idea that there are still folks in need of legal services who may appreciate information that may answer their questions or guide them in the right direction or arm them with questions to ask any attorney before hiring them, in a sea of mass advertisers proclaiming to "care about you" in cheesy radio and TV spots while you're simply trying to watch a ball game.


It's times like this that you sometimes need a little push in the right direction, or be handed a nugget of inspiration in some strange, random place. Today, while searching aimlessly for "interesting legal news," (think "jumbo shrimp," "hot water heater," or other appropriate oxymorons) I found an interesting article about Beethoven by Robert Kahn, entitled "The Man." Strangely enough, I found the article on a legal news website of all places. As I read it, this passage at the end really grabbed me:

Bringing people comfort is hardly what artists choose to do anymore. It's not what Beethoven chose to do. But he did it nonetheless. He's been doing it for nearly 200 years after he was dead, and he'll be doing it so long as there is a human race that remembers how to play Beethoven.

Arthur Rubinstein explained it in a master class I attended 35 years ago. Most artists who give master classes give instruction: they interrupt; they get right in there. But Mr. Rubinstein, 90 years old, just sat and beamed as a procession of young pianists knocked the stuffing out of the piano for an hour. Then Mr. Rubinstein, beaming like a cherub, stood and walked slowly stiffly to the podium and said these few words to the packed auditorium: "You must keep playing music. When people get old, sometimes they get sad, and music is the only thing that can console them. So you must keep playing music."

The wisdom of that simple statement was not lost on me. I thought of so many of my elderly clients, who've been injured in some form, and now face the argument from an insurance company that their injuries are to be cheapened or lessened because they're "up there in years." They may have lost a spring or two in their step, but they continue to play their music as best they can, which may make it sound even sweeter to them and their audience because of the ticking clock of time and age.

But this lesson applies to all of us, really. No matter what you do, whether you're a teacher or a chef or grinding it out in a small business in a lousy economy, if things seem a bit overwhelming, Mr. Rubinstein's advice is golden: just keep playing your music. Whatever it is.

And that goes for you too, Neil (Young, that is--one of my personal music heroes). He just cranked out another album at age 65. So no matter what music you play, "Keep On Rockin In The Free World." And don't be afraid to hit a few wrong notes along the way...

Happy Holidays!

Employers' Liability For Drunk Employees Who Cause Accidents

Something to keep in mind as the holiday season and the "company Christmas party" approaches...

Facts (unfortauntely very tragic): an employee with a known history of drinking leaves his place of employment and causes a horrific crash about 9 miles from the office, killing three people. His blood alcohol limit is 0.43, five times the legal limit.. Apparently he also admits to his supervisor to drinking earlier in the day.

The man who lost his wife and two small children sues the driver and his employer, claiming they knew or should have known that the employee/driver was drunk, and should not have allowed him to drive. The employer offers the testimony of seven witnesses who claim that they had no reason to suspect he was drunk.

A Michigan jury will decide this issue this week.

What liability would an Ohio employer have when intoxicated employees negligently cause a crash under similar circumstances? The answer--it depends. For example, if the negligent employee was in the "scope of employment" at the time of the crash, the employer would be liable for the employee's negligence. However, it is not always clear whether an employee is in the scope of employment.

But even if the employee's act is outside the scope of his or her employment, an employer can be held liable in Ohio for negligent entrustment of a motor vehicle if the employee was incompetent to drive and the employer knew or should have known about it. However, in order to "entrust" a vehicle to another person, the employer would have to have some sort of ownership interest in the vehicle.

Given what happened in the Michigan case, employers would be wise to take action if they suspect that employees entrusted to drive company cars or even their own vehicles are impaired. No matter what the intracacies of the law are here, it's just common sense.

Trucking Company Blames Accident Victim--And Loses

This recent case shows the depths to which trucking companies will "blame the victim" in personal injury lawsuits. Here's what happened: a commercial truck crossed the median of a major interstate and crashed directly into the path of another truck, seriously injuring the second driver. The injured truck driver sued the truck driver who crossed the median and his trucking company/employer.

One of the trucking company's major defenses at trial was that the injured driver "did not slow down to avoid the accident and that his vision was impaired due to uncontrolled diabetes." This, despite the fact that the offending driver apparently fell asleep at the wheel and falsified his log book to cover up the fact that he had driven too many hours in violation of federal safety regulations.

The jury apparently saw through this defense and returned a $3 million verdict. I'll bet the injured driver never dreamed that his case would go to court when a large truck careened across a highway median and changed his life. Unfortunately, a "blame the victim no matter what" strategy is more common than you would think, especially when the injuries are serious and the insurance company is desparate to minimize its legal responsibility.

My guess is that, in the end, their "let's throw a bunch of stuff against the wall and see if some of it sticks" strategy backfired and only angered the jury, which sent the appropriate message with their verdict. I don't know who said it, but it's true: the American jury is one of society's best "attitude adjustment" mechanisms in a democratic society.

Why Does Wrong Site Surgery Continue To Happen?

In "Groundhog Day" fashion, it seems as though we can't go but a few weeks and, bam, there's yet another medical malpractice lawsuit claiming that a hospital/ surgeon operated on the wrong patient or wrong body part. This time, "St. Louis University doctors mixed up their patients and did the wrong surgery on one man's spine," according to a recent lawsuit filed against the hospital.

Wrong site surgeries are on the rise, according to the National Institutes Of Health. In fact, wrong site surgery has been gained enough notoriety to be given an acronym--WSS (it's a good rule of thumb that if something has its own acronym, it's a big deal).

The vexing problem of wrong site surgeries confirms one of the ugly downsides of health care delivery: it is a volume business within a complex system.. Consequently, patients will fall through the cracks despite the best protocols, policies, and safety procedures. The best hospital safety policy is useless if the surgeon or the hospital is in a hurry to move patients, in cattle like fashion, for whatever reason.

I hear politicians squawk all the time that we have the best health care system in the world. In many respects, we do. So why do these 100% preventable medical errors continue to happen? For all the hue and cry about doctors practicing "defensive medicine," what do hundreds or thousands of wrong site surgeries each year do to health care costs? Is continued malpractice a driver in the high cost of health care? The powers that study health care policy and "reforms" continue to ignore the proverbial 800 pound gorilla standing in hospital hallways and operating rooms across the U.S: that by actually reducing incidents of malpractice, malpractice costs, and therefore health care costs, can be reduced.

Reducing malpractice lawsuits by reducing malpractice...now there's a novel idea...

Doctor's Artichoke Lawsuit Is One To Gag On...

Even Stymie knew how to eat an artichoke--or better yet how NOT to eat one.


Apparently, however, this life lesson was lost on a Florida doctor, who ordered an artichoke at a restaurant, and ate the entire thing.

Not suprisingly, he developed severe abdominal problems, and is now suing the restaurant for failing to warn him how to properly eat an artichoke.

This is a stupid lawsuit and one that should and will go nowhere. Although lawsuits like this are not the norm, the media loves them for their zany and headline grabbing effects. Somewhat ironic is the fact that it is a physician who's bringing this lawsuit. Physicians as a group are generally "anti-lawsuit" and groups like The AMA have spent millions lobbying for relief from medical malpractice lawsuits, and tighter sanctions for what they deem to be "frivolous lawsuits."

Which leads me to my working definition of a "frivolous lawsuit" in the eyes of the public: one other than my own. My guess is if this same physician had read about someone else choking down an entire artichoke, he would have laughed it off as frivolous. Of course, this is only my opinion. I could be wrong. What do you think?

More than anything else, I'm thrilled that I found a way to work a Little Rascals/Stymie clip into a legal blog about an artichoke lawsuit, no less! I guess this means we'll see a Petey the dog clip if I can just find a case about a dog bite...

Why Vigilante Justice Is No Justice At All (And Why Tort Reformers Should Fear It)

This sad story about a molestation victim taking matters into his own hands got me thinking about vigilante justice, and how our changing legal landscape, particularly the "tort reform" movement, may be encouraging it.

In 1995, William Lynch, who was 9, and his younger brother, were sodomized by a priest. Last month, Lynch, 44, entered a nursing home where the priest resided and beat the tar out of him.

Two points of interest: first, the priest was not charged criminally because the statute of limitations had run. Second, in 1998, Lynch and his brother settled their molestation claims against the Catholic Church for $625,000. After the settlement, Lynch continued to have major psychological problems, and even contemplated suicide. Understandably still resentful over what this priest did to him, he took matters into his own hands. And now he faces criminal charges for the beating.

The first reaction to this tragic story is almost universal: to identify with Lynch. After all, who wouldn't want to maim or even kill the SOB who did this to you, or your children if they were the victims of such a despicable act? We all get that. But it's an emotional reaction; a reaction as natural as breathing, and probably as visceral as any other emotional feeling or state of being, like love, for example.

But it raises a larger question: should we condone vigilante justice in a civilized society? American society is founded in large part on the rule of law. Translated, our societal expectation is that our Constitution and criminal and civil justice system offers an orderly mechanism for punishing the guilty, resolving disputes, and holding wrongdoers accountable for the harm they cause. It is the societal glue that holds us together by deterring mob rule, and aggrieved parties from taking the law into their own hands, otherwise known as chaos. Indeed, when we read about reactionary mob rule in Third World countries, our predictable reaction is one of shock and suprise at the lack of order that leads to perceived injustices.

Where does "tort reform" fit into this picture? It is a well organized, multi- billion dollar movement, led by The Chamber Of Commerce, big business, the insurance industry, and medical groups, to restrict or even eliminate Americans' access to the court system in a wide array of mishaps. Examples abound, from financial fraud that devastates our financial freedom, to medical malpractice and medical devices or drugs that ruin our health. Because these wrongdoers and miscreants typically never see prison time for their misdeeds, our civil justice system is the usually the last resort--and the only remedy--for those harmed.

Due to a constant drumbeat of a well orchestrated, thirty year plus media campaign, the tort reformers (well heeled "organizations" and other "interested citizens groups" that are, in reality, astroturf groups funded by conglomerates) have successfully achieved most of their goals. Over 32 states have passed the crowning jewel of the tort reform movement: limitations or "caps" on what innocent victims of wrongdoing can recover in lawsuits. For example, if molestation victims sue in Ohio, their recovery as of 2005 and beyond would be limited to $250,000 for their lifetime of mental anguish and other psychological problems.



Unfortunately, within the next few years, we can expect to see more "reforms" passed in the form of national medical malpractice limits, and "loser pays" legislation. The collective weight of these legal restrictions will ultimately serve the second major goal of tort reform: to make it so difficult or so expensive for ripped off or maimed victims to sue that they say "to hell with it" and forego their diluted right to sue and hold these institutions accountable.

Bottom line: your "rule of law" is being co-opted and hijacked by muscled special interests. But there's a real toxic downside to this stench: as more individuals are left on the side of the road, unable to level the playing field with any meaningful legal recourse, I fear it will encourage an increase in vigilante justice. Is it wrong? Sure it is. And I hope I am wrong, but I see this as an unfortunate byproduct of a machine like movement that is, drip by drip, eroding our legal remedies like a thief in the middle of the night. You see, tort reform laws are spawning some other laws that are not yet officially on the "real world" books: the law of unintended consequences.

Vigilante justice makes for a good movie plot. Doesn't work so well in real life.

Attorney Advertising Reaching New Lows (In Fact, Going "Underground")

Just when I thought attorney advertising was scraping the bottom of the barrel, we have a new entry to be ashamed of (more on that in a minute). But let's review the sad litany of embarrasing advertising the general public has been exposed to over the years: shameless "solicitation" letters sent to accident victims (along with self laudatory DVD's, refrigerator magnets and other goodies thrown in the packet for good measure),and cheesy and/or repulsive TV, radio, and phone book ads (many with the tag that "we'll get money for you" and other nonsense).

More recent entries into this swamp have included cookie cutter, canned websites and blogs horribly ghostwritten for the sole purpose of increasing Google rankings through repeated use of familiar phrases or "keywords."

But, alas, some genius has thought of a new way of sinking our reputation even further: attorney advertising on funeral home websites.

As attorney Eric Turkewitz aptly pointed out:

[it] made me think of the washed up lawyer played by Paul Newman in The Verdict, going to funeral homes to pass around his card, pretending to have known the deceased as he chased cases. But instead of standing in their parlors handing out cards, this company wants lawyers to hang advertising on their site where the bereaved might go in time of need.

Eric hit the nail on the head in concluding that "The bar for attorney advertising has been lowered to new depths. It now appears to rest six feet under."

It's a safe assumption that the overwhelming majority of us personal injury attorneys are appalled by this latest "marketing" scheme. Unfortunately, most of us are a "silent majority" on the seemingly endless and shameful ways some firms go about attracting new clients. But don't expect the "faux blogger" law firms to expose this idea for what it is. They're probably too busy signing up to put their "Questions about how your loved one died/call us today" patch on funeral home websites...

Insurance Companies That Want Your Social Security Number After An Accident--An Update

Recently I wrote about insurance company attempts to obtain injury victims' Social Security numbers after an accident and why they want them.

The reason? To submit accident victims' Social Security numbers to a bunch of databases, including credit histories/ratings among other things (you might ask yourself: why would insurance companies want your credit scores as part or their investigation of your auto accident injury claim?)

A recent Ohio car collision case I handled shows how one sided and hypocritical insurance companies are on this issue. I recently represented a driver injured in an intersection collision. The at fault driver had low liability limits. Fortunately, my client carried ample underinsured motorists coverage, which permit injured persons to make a claim against their own insurance company if their injuries/claim exceed the at fault driver's liability limits.

A lawsuit was filed against the at fault driver, and also my client's insurance company, for underinsured motorists' benefits. When a lawsuit is filed, all parties have the right to send written questions, known as interrogatories, to each other.

So here's what happened. The at fault driver's insurance company sent my client interrogatories, one of which asked for her Social Security Number (which I objected to and refused to answer, because of privacy concerns and a lack of relevance to the crash or my client's injuries).

Now here's where it got fun: my client's insurance company sent similar interrogatories to the at fault driver's insurance company, and asked for her Social Security Number as well. What did the insurance company for the at fault driver do? They refused to divulge her Social Security number, claiming that it was irrelevant!!

See how it works in the insurance world? Demand the injured victim's Social Security number, but refuse to divulge the at fault driver's/their insured's Social Security number.

If they wanted to be fair and above board, one would think that insurance companies would divulge the same information on their negligent driver that they are seeking from the auto accident injury victim. That simple logic assumes, however, that the insurance claims process is a two way street and an even exchange of information. It is not, and insurance companies' hypocrisy on this issue proves the point.

The lesson? "Fair and above board insurance company" ='s "jumbo shrimp," "hot water heater" and other oxymorons.

Wrong Hand, Wrong Site Surgery--And The RIGHT Way To Handle This Medical Error

Unfortunately, wrong site surgery is more common than we would like to believe. Approximately two years ago, surgeon David Ring operated on the wrong hand of a patient. Apparently, for reasons unexplained in the article, Dr. Ring recently went public with this medical mistake. Why is this so newsworthy now? Sadly,

Ring’s public admission is rare in a field that typically cloaks doctors’ errors in anonymity, if not secrecy. Patient safety advocates praised Ring’s seven-page mea culpa as a necessary step to reversing rising numbers of wrong-site surgeries and other errors.

How pervasive is the vexing problem of wrong site surgery?

In 2008, the most recent year with complete records, 116 wrong-site surgeries, up from 93 in 2007, were recorded by the Joint Commission, a national hospital accrediting agency. Preliminary reports logged 137 wrong-site surgeries from March 2009 through June 2010. That’s despite more than a decade of attention to the issue following the landmark 1999 Institute of Medicine report titled “To Err is Human.”

Dr. Ring is praised in the article for bringing this medical mistake to light, as he should be. This is the way totally preventable medical mistakes should be handled--with transparency. But I would disagree with any assertion that his going public with what happened is considered some sort of act of courage.

Admitting an obvious and indefensible medical mistake is not courageous; it is, simply, the right thing to do. As to the medical profession it may be considered courageous, but only because mistakes like this are often explained away, mitigated, or even justified as "system errors" or other euphamistic nonsense. A medical culture that discourages admitting error is the true root cause for the lack of coming forward and the transparency and honesty showed by Dr. Ring in this instance.

So give him a lot of credit for doing the right thing here. But the publicity this incident has garnered, and labelling it as an act of courage, says more about the current culture of the medical profession than anything else.

Bottom line: if a doctor makes a preventable medical mistake, just admit it and move on. That's why doctors and hospitals have malpractice insurance. When we get to the point that something like this is NOT newsworthy, the medical profession will have caught up to the rest of how society views personal responsibility and accountability.

The Real Effects Of Medical "Tort Reform"

One of my favorite legal bloggers is Justinian Lane, who passionately writes about our civil justice system. One of his blogs is "TortDeform," which exposes the folly of the tort reform movement, and its true goal: to make it so hard to bring legitimate lawsuits against big business, insurance companies, and the medical industry, that ordinary individuals say "to hell with it," and give up. All to the benefit of these well heeled interest groups.

There's lots of data to support the idea that legal tort reform will do nothing to help our economy and create jobs (a tirelessly repeated canard of that movement) or bring down the cost of health care in America. But largely this falls on deaf ears. The tort reform movement is not about "data" or "facts." It is, at the end of the day, an orchestrated, well crafted perception: that we are awash in "frivolous lawsuits" that exact increased costs on all of us. It is a perception fueled by a multibillion dollar propaganda machine that parades random, goofball lawsuits as "Exhibit A" for what's wrong with our legal system.

Frequently lost in the tug and pull of perception versus facts/data is the human side of this debate, and how tort reform actually affects real people with legitimate, non-frivolous cases. These are the folks left on the side of the road (or better yet the ditch) in this one sided debate. Sometimes their words are more illuminating than "position papers" or the latest cooked data from The Chamber Of Commerce or the insurance industry. Recently, TortDeform posted a testimonial from a Texas malpractice victim. Ohio has passed similar "malpractice reform" laws, so the writer/victim's observations are particularly salient to what is currently happening in Ohio. The testimonial was so moving that I am reposting it here:

I have read some of the things on Tortdeform and would like to share our medical malpractice experience. My hope is that others will share their experiences. Perhaps, if enough experiences are shared, we can change public perception. Currently, that perception is that many are getting rich making frivolous medical malpractice claims, that juries give away huge amounts of money for the slightest thing, that this has a big impact on our medical insurance cost, and that it drives medical malpractice insurance so high that doctors go out of business. This perception fuels a cry for tort reform and is taken up by our politicians. The most common “fix” is to limit damages awarded. While this sounds good in theory, did you ever think what happens to someone who is actually a medical victim in this “reform” environment? The following is our “story”.

We live in Texas, which is touted as the "model" of tort reform for medical malpractice. My wife and I had planned our “dream” vacation. Before we left, she wanted to get a procedure (which she has had several times before) done on her spine to alleviate pain. Unfortunately the doctor messed up and she was left paralyzed on one side. She had additional complications which left her in constant pain, unable to walk without a walker, and then only a minimal amount. It is difficult for her to function and I prepare her food, bathe her, dress her, fix her hair, etc. Our life has totally changed.

When we explain what happened to our friends, one of their first responses is, “I guess you’ve sued and gotten a big award”? It seems so obvious to them. However, it’s not so easy. Our first issue was to find a lawyer. Expenses will be $50,000 - $250,000 to try the case. If the lawyer loses, this money comes out of his pocket. In 75% of the cases that go to trial, the doctor wins. So the lawyer’s not taking the case, unless he is very confident of winning. Second, there must be written expert opinion, from doctors in the same field as the plaintiff, who will testify to the malpractice – before the case can even get on the docket. So much for “frivolous” lawsuits!

We have already spent $45,000 out of our pocket (beyond what medical insurance covers). I estimate that over my wife’s lifetime we will need $1,000,000 to $1,250,000 to cover extra expenses. Experts in our case tell me that my estimate is low – it could well be double this. The lawyer’s fee is 40% of gross recovery plus expenses (and interest on those expenses).

As we proceed with the case, we are confronted with additional sobering facts. Today, doctors attend classes to learn how to shelter their assets (trusts, etc). Even if we do go to trial and win that two-million dollar award, the doctor’s assets are sheltered, he will declare bankruptcy, and the most we will get is the limit on his malpractice insurance - $750,000. In addition, medical insurance companies (and Medicare) have a little clause in their policy called subrogation. This means that if you recover money in a case, they will expect you to pay back (out of your recovery) all the money they paid for hospital bills, rehab, etc. Their first requests to us were for upwards of $300,000.

We are told we are pretty lucky. Following negotiation with the medical insurance company, and after lawyer fees and expenses, we stand to recover about $250,000. Still the feeling is bittersweet. This totally ignores the constant pain and suffering my wife experiences, her inability to function normally, and the likelihood that she will spend her last years in a nursing home when I am too old to care for her. Nor does it deal with the change in quality of life I have as a caretaker. I have no idea how we will meet the mounting financial strain - $250,000 is 12-25% of what we will need.

We feel we have been victimized twice - the first as a medical victim, the second by the judicial “tort reform” system. My lawyer says that our story is common place – in fact there are many worse than ours. To add injury to insult, I am told that we will be required to sign an agreement that we will not reveal facts of our case to the media. Again, an attempt to keep the real truth hidden from the public. While I have not yet signed such an agreement, I have kept names and details out of our story to protect everyone involved.

Again, I implore others to share their story in Tortdeform (without violating any legal agreements). If sufficient “stories” are revealed, perhaps public opinion will side with the victim, and more appropriate “tort reform” can occur.

Keep up the good work, Justinian...

Hospital And Doctors Who Removed Non Cancerous Testicle Not Liable Due To Legal Immunity

Now here's some Texas justice for y'all. A Texas court recently ruled that a hospital is not liable for removing a patient's wrong testicle.
Here's what happened:

Safwat Kamel complained of an enlarged testicle in 2005, and Drs. Run Wang and Tiffany Sotelo performed surgery to remove the fluid around the testicle.
During surgery, Wang diagnosed the testicle as cancerous, given Kamel's history of colon cancer. Wang removed the testicle, and later tests proved it was not cancerous.

(Apparently they do not do pre-operative biopsies in Texas, which may have detected the lack of testicular cancer...so much for all the talk about doctors practicing "defensive medicine," like a biopsy, out of fear of endless lawsuits... just sayin...)

So, Mr. Kamel is absent one testicle and his lawsuit was dismissed despite the seemingly preventable malpractice here. Why? Legal immunity for state run hospitals in Texas. For those unfamiliar, legal immunity means that institutions like schools and cities are not liable for negligence. Like Texas, Ohio has loads of immunity for cities and schools (you can read all about it here), but has not adopted immunity for medical providers...yet. Last year, The Ohio Legislature considered a bill giving emergency room doctors immunity for negligence. The bill failed, but given yesterday's election, and the fact that one party now dominates both branches of the Legislature, the Governor's office, and The Ohio Supreme Court, one word comes to mind: lookout.

Expect an onslaught of physician and hospital immunity bills to be proposed in Ohio within the next few years. Lose your testicle or breast or other vital organ due to preventable negligence? Tough luck. Sorry for your loss. Get over it.

Apparently, now, everything's smaller in Texas. Including legal responsibility for medical malpractice.