When To NOT Ask Questions At Trial

A few years ago I tried an auto accident case. The defendant driver was 94 years old. By the time of the trial, she was in a nursing home. I never did take her deposition before trial because it was represented to me that she was too ill. Since the accident facts were pretty straightforward (she ran a stop sign), my inability to take her deposition before trial did not concern me.

When the trial started, defense counsel indicated that his client, the elderly driver, would testify at trial. I offered to enter into a stipulation with the lawyer that there was no need to have her testify.

The insurance company refused, apparently thinking that, by putting her on the witness stand, it would create sympathy for the elderly driver.

So the defense attorney put her on the stand. It was a disaster. She was confused, couldn't hear very well, and the questioning didn't serve any real purpose. Despite the disjointed testimony, she did say that she didn't think she saw any cars coming when she entered the intersection.

When it came time for cross examination, the judge asked me if I had any questions.
I stood up and said three words: "No, your Honor." She had done no damage to our case, and the last thing I wanted to do was to ask a single question that appeared to be "beating up" an elderly, confused driver. In my judgment, the jury understood what was going on. And as it turned out, the jury "got it."

Sometimes you need to know when to shut up. In these situations, often the best cross examination is none at all.

Truck Driving Accident Turns Into Punitive Damages Claim

This preventable truck driving accident seemed simple enough. The truck driver ran a red light under heavy fog conditions (fog "so bad you couldn't see in front of you" according to witnesses) and smashed into a motorist at an intersection.

However, after the lawsuit was filed, it was discovered that the driver:

had a previous speeding ticket in New Mexico, a suspension and/or revocation of his license, multiple moving violations, falsified/missing driver logs, little to no experience in the field, and the inability to speak/read/write English fluently.

What's more, during "discovery" (the process by which parties request and exchange written documents/information) it was learned that the driver logs from the crucial time period surrounding the accident were never produced, and that the logs which were produced “show falsified information with regard to times and/or distances.” (Id.).

As a result of these facts, the judge permitted the plaintiff (the injured party) to amend the complaint to allow a jury to consider a claim for punitive damages against the trucking company for its hiring practices and not producing the missing information, among other things.

Lesson: many trucking negligence cases involve more than the "simple facts" that led to a collision. Occasionally, haphazard hiring or safety practices well before a collision are the true root cause of an eventual collision.

And you can be sure of one thing: the unjured victim will NEVER learn about some of these safety shortcuts unless (1) he or she hires a competent attorney with experience in knowing what information to push for; and (2) a lawsuit is filed.
Trucking companies NEVER voluntarily release this potentially damning information without a lawsuit being filed.

Case: Sabo v. Suarez, United States District Court, M.D. Pennsylvania (July 31, 2009).

$105 Million Dollar Verdict In New York City--The Big Apple Likes This One

Yesterday a New York jury returned a $105 million verdict against Exxon for its poisoning of New York City's water supply. The recipients of this whopper verdict were not "personal injury" plaintiffs. Rather, the plaintiff was New York City--the Big Apple itself!

I found it ironic that this verdict came on the heels of a recent report that indicated that New York City spent hundreds of millions in 2009 settling personal injury type lawsuits. City officials were complaining about the extreme costs of tort litigation and ways to curb it, such as putting a legislative cap or limit on lawsuit recovery.

But I'm sure THIS verdict will engender no complaints from NYC officials about our tort system. Welcome to the double standard that is our litigation system. After being in the litigation trenches for over 20 years now, the real world definition of a frivolous lawsuit donned on me a few years ago.

The textbook definition of a frivolous lawsuit in Ohio is:

Conduct that serves merely to harass or maliciously injure another party, or is for another improper purpose;

Conduct that is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law;

Allegations that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Forget how the law defines a "frivolous lawsuit." You want the street definition? Here it is: Any lawsuit other than mine."

It's those "other people" out there that are abusing the system. "They" are trying to get something for nothing from cities like NYC, so the thought goes. But our claim, or in this case, New York City's, is valid and proper. This seems to be the prevailing mentality of people utilizing the legal system. In fairness, there is some truth to this belief, because some people try to take advantage of the system. More importantly, though, the "any lawsuit other than mine is frivolous" mentality exposes how subjective public attitudes about our legal system really are. One person's valid lawsuit is another person's "frivolous lawsuit." That term gets tossed around so loosely and so often that it has lost its true meaning with the public.

It's very similar to all the current cries for "tort reform." What it truly means is that people generally have no objection to cracking down on "those other lawsuits out there," but get really ticked when they discover that tort reform has infected and limited their legitimate lawsuit.

Phone Calls From Chiropractors And Attorneys After An Auto Accident

If you've been injured in an auto accident, you may receive a few phone calls. Here's what you need to know to protect yourself from some shady and perhaps even illegal practices.

The first series of calls may come from chiropractors who got your name by hiring "runners" to retrieve your accident report (which is a public record). The pitch? "We can help you and there's no need to pay the bills as we have an attorney who will work with us and pay your bills out of any settlement." Many will even offer you cab fare to arrange for your initial office visit. From there many will pressure you to sign forms where you give the chiropractor an interest in your injury claim. And, by the way, they will recommend an attorney, who will often be at the chiropractor's office, ready to "sign you up." These are nothing more than "mills" that are not intetested in your best interests. Many insurance companies are wise to these referral mills (because the same chiropractors and attorneys show up repeatedly on these claims) and you are at risk for ruining your claim by agreeing to this shady arrangement.

The next wave of phone calls you may receive is from a small group of attorneys or their office staff. THIS PRACTICE IS ILLEGAL IN OHIO AND VIOLATES OUR ETHICAL RULES. Any attorney engaging in this sleazy practice can be disciplined. These phone calls will take on various forms, according to Columbus personal injury attorney William Mann, who is also an expert in Ohio ethics law:

If attorney phone solicitations are done "right," they are very difficult to prove. The offending lawyers, when caught, say something such as, "Oh, we get dozens of phone calls a day from potential clients and friends and family of potential clients and we try to return all of them. We probably called X because we got a call from a friend or family member asking us to call him." Another scam is to direct contact a potential client and say,"I am investigating this accident and heard you had information about it.* * * Oh, you were injured in this accident, too! Well, since I am already working on this I would be happy to represent you as well." Another popular scam is to direct contact a potential client and say that you will be happy to come to their house and talk about the potential case. When you get there you give them some money, maybe $125 if it is a good case, in cash, for "cab fare," so that they can come to your office during the case if they sign your contract. It goes on and on but these are the scams that I hear about most often.

The overwhelming majority of attorneys do not pull these shenanigans. As usual, it takes only a handful of unscrupulous attorneys to give all of us a black eye.
Lesson: HANG UP THE PHONE! Do your research. Ask friends and family for a list of competent Ohio personal injury attorneys or firms. Hop on the Internet and find a firm that offers potential clients good information or practical advice on what to do after an auto accident. And just say no to "friendly" offers of cab fares and attorneys lurking in the back room of a chiropractor's office.

How NOT To Choose A Malpractice Attorney Over The Internet

Recently I visited a local free "listing" website (similar to yellowpages.com) just to make sure our firm was correctly listed on the site. I noticed a link at the top of the site to a another site (something like "malpractice lawyers for you"). Curious as to who this firm was, I clicked on the link. Up popped a law firm that I had never heard of. The firm listed a 1-800 number and listed no address. I was convinced that this was not an Ohio malpractice firm.

So I dug a little further with a Google search and, sure enough, this malpractice firm, advertising in Canton, was really an Oklahoma law firm. Why would an Oklahoma law firm be soliciting Ohio malpractice cases? Simple--to "sign up" the client and attempt to refer the "client" to a competent Ohio malpractice attorney, for the purpose of gaining a referral fee.

Here's the problem with this arrangement. You as the "client" of this firm are now being passed off to another attorney or firm. No doubt you will have no say or input as to whom you'll be passed off to. This is nothing more than a business arrangement. So be careful when you are searching for an Ohio malpractice attorney and land at a site that does not reveal the location of the firm. The old adage of "cutting out the middleman" might apply here...

Newly Proposed Consumer Financial Protection Agency: Chamber Of Commerce Hypocrisy Exposed Again

The Chamber Of Commerce has (again) recycled a shopworn page from its PR playbook: if you can't think of any substantive criticisms of a new law, just blame "trial lawyers." As a response to our recent economic meltdown, The Obama administration recently proposed creating The Consumer Financial Protection Agency. Here's a summary of some of the Agency's proposed powers:

To begin with, be aware that the agency's powers and oversight would extend far beyond mortgages and real estate -- into all credit cards, debit cards, consumer loans, payday loans, credit reporting agencies, debt collection, stored-value cards and even investment advisory and financial advisory services, to name only part of the list.

It would have the authority to alter long-common practices that nettle consumers, such as mandatory arbitration clauses in the fine print of contracts that automatically send business-consumer disputes to arbitrators rather than to courts. The agency could ban or limit such clauses in specific products if they are shown to tilt against consumers' interests.

The agency would write the user-safety rules for virtually all consumer financial products and would have the legal firepower to levy huge fines -- tens of thousands of dollars a day per violation in some cases -- and prosecute lenders, brokers and others who break the rules.

The agency would be the dominant federal consumer protector in all home real estate settlements. It would regulate "affiliated" title, escrow and financing businesses connected with realty firms and builders. It would oversee equal credit opportunity and fair housing, and would set standards for all mortgage offerings, whether from the biggest national banks or the smallest local brokers. Generally it wouldn't seek outright bans on mortgage products that carry elevated risks -- interest-only loans, for instance -- but would require that lenders restrict such mortgages to well-informed applicants who can document that they understand the risks and can afford the payments.

Look, whether you agree or not with the idea of creating a new government agency to crack down on the mortgage and banking industry or arbitrary credit card surcharges, most people would conclude that SOME increased regulation of the lending industry is needed to prevent the rampant greed (some would say fraud) and overreaching that led to the collapse of the stock market, our retirement plans, and the banking industry.

Who opposes this legislation? The Chamber Of Commerce. Naturally, they really can't argue that the drunken greed of Wall Street and the lending industry had nothing to do with our economic collapse. Who are they targeting while opposing this newly proposed agency? Those evil "trial lawyers." What's the reason? Apparently, under the bill, the Attorneys General of each state have the power to sue and fine the financial services industry for violating any new regulations. And, in an obvious stretch, the StarChamber reasons that any state's Attorney General's office might hire "trial lawyers" to help prosecute these miscreants.

The other main reason it opposes the bill is the byproduct of another dusty and torn page of its playbook: decrying more "big government." But here's where the StarChamber really looks like hypocrites in opposing this bill: The Chamber fully supported the first bailout of Wall Street! Here's what their chief lobbyist said on the eve of the first bailout/stimulus passed in October, 2008:

Extraordinary government intervention is essential to restoring confidence and ensuring credit availability,” the Chamber’s chief lobbyist, Bruce Josten, said in a letter to lawmakers.

“Stabilizing the financial system and preventing a systemic collapse of our capital markets must be the federal government’s top priority,” he added. “Speed is of the essence.”

In addition to its key vote alert, the Chamber on Monday sent out an urgent call to action to its members across the country urging them to lean on their lawmakers to vote for the rescue plan.

“Time is of the essence!” it read. “It is more important now than ever to urge your members of Congress to take immediate action to stop the impending financial crisis.”

On Monday, Josten said in an interview that the enhanced oversight in the bill may not create major burdens for the business community because it will apply only to those that seek help from Treasury.

The message: support HUGE govermnent bailouts of the industries primarily responsible for our wrecked economy, but oppose any legislation as "big government" when it comes to protecting consumers. And, oh yeah, we've got to find a way to blame the trial lawyers for something in this bill...

Erectile Dysfunction Malpractice Verdict--This Would Be Cut Down In Ohio

A Georgia jury returned a $9.25 million verdict against Boston Men's Health Center after its erectile dysfunction treatments caused permanent damage to a 53 year old patient's penis. Apparently the damage was caused by a series of injections of a "secret formula" that was actually a medication (Papaverine) that came under fire by The FDA:

After the initial examination, the clinic's staff diagnosed Howard with erectile dysfunction and premature ejaculation and said they would inject their medication into his penis, a process that would be "painless." Although described by the company as a "secret formula," Orr said that the primary ingredient injected into Howard was a drug called papaverine. While papaverine had once been the primary means of treating erectile dysfunction, it was discarded as a treatment after Viagra was introduced in 1998, Orr said. The Food and Drug Administration has since warned that papaverine should not be used to treat erectile dysfunction, he said.

The jury awarded compensatory damages (money damages designed to compensate for physical damage) of $750,000 and also found Boston Medical liable for $8.5 million in punitive damages( money damages designed to punish a party for outrageous conduct).

If an Ohio jury returned an identical $9.25 million medical malpractice verdict, the minute the jury left the courtroom the judge would have been required to chop the punitive damages verdict from $8.5 million to $1.5 million--a whopping $7 million discount.

Obviously this jury believed that Boston Medical's conduct in repeatedly using a medication no longer recommended by The FDA was more than just negligent conduct. So why do Ohio punitive damage laws give a $7 million discount to a party found liable for egregious conduct? And as a final insult, Ohio juries are not even told that their community decision is subject to an automatic reduction of potentially millions. In fact, the law specifically forbids judges from informing Ohio juries that there are limits or caps on punitive damage verdicts.

Another Ohio "tort reform" law that favors (and rewards) wrongdoers, and hoodwinks juries from being told the truth.

Doctors/Hospitals Leaving Sponges In Patients--Welcome To Tort Reform

Two women. Two surgeries--a tubal ligation and a hysterectomy. The common denominator? Doctors and/or the surgical team negligently left large sponges (commonly referred to as "foreign objects") inside their abdominal cavities. The women lived with the sponges inside of them for nine and eleven years, respectively. Both suffered numerous, chronic medical problems that were misdiagnosed until the foreign objects were finally discovered and removed.

Pretty straightforward medical malpractice case, right? I think we'd all agree that large sponges, towels, forceps, hemostats, clamps, and other hardware left behind in the human body after surgery are classic examples of a preventable medical mistakes. Yet, both cases are before The Texas Supreme Court. Why? Welcome, again, to tort reform.

A few years ago, state legislatures in Texas, Ohio, and other states responded to a multimillion dollar phony "malpractice crisis" PR campaign hatched by the insurance and medical industry and passed numerous laws restricting the ability of malpractice victims to bring lawsuits (I might add parenthetically that doctors were getting unfairly gouged with escalating malpractice premiums by their own insurance companies due to an "insurance crisis" but the insurance lobby blamed their gouging of doctors on "lawsuits" and they won the lobbying war with state legislatures, hence all this lawsuit or "tort" reform).

Many states shortened the statute of limitation for bringing a medical malpractice claims. They also passed what is known as a statute of repose: an absolute deadline for bringing a malpractice claim (usually 10 years). No exceptions, even if you could not discover something like a foreign object left inside of you until after the 10 year deadline.

The Texas Supreme Court is going to decide whether these strict limits bar these womens' claims even though what happened to them was inexcuseable and they had no way of knowing they were carrying eroding surgical sponges in their abdominal cavities (Ohio's "reforms" are just as punitive as Texas,' although Ohio's statute of repose did make an exception for Ohio foreign object malpractice cases).

So what's the response of Texas hospitals that have filed briefs with the Texas Supreme Court? Here's what the hospital lawyer compassionately (note sarcasm here) pointed out:

I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."

(I wonder if this kind soul would feel differently about the issue if it were his wife or daughter who was carrying a large sponge for eleven years, but I digress..)

So there you have the official position of the medical profession in cases of obvious medical malpractice. We screwed up, but an deadline is necessary and we're sorry there will be victims left on the side of the road, but these laws are good for the people of Texas. Or Ohio. Or wherever else tort reform has been passed.

The hue and cry of politicians and a misinformed public is that "We need to get tough on these medical malpractice lawsuits." Well, you're getting your wish. And this is the byproduct of it all. So much for accountability and "personal responsibility."

Ohioans Health Insurance Premuims Rise 84%--Proof That "Tort Reform" Does Not Lower Health Care Costs

In previous posts I have been practically shouting that medical liability or "tort reform" will have NO bearing on the cost of your escalating health insurance premuims. In fact, I asked:

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

Well, we FINALLY have some data out of Ohio. Since 2000, Ohioans health insurance premuims have risen 84%!!!! Guess what? We have had medical "tort reform in this state since 2003, or 6 out of the last 9 years! Included in these "reforms" is a one size fits all "cap" on your recovery for things like being paralyzed, losing a limb, or losing your bowel or bladder function, brain damage--at anywhere from $250,000 to a "generous" $350,000. This cap was sold by insurance companies and the Ohio State Medical Association as being collectively good for all Ohioans ("don't you know that limiting YOUR legal rights is GOOD for you?") as a way to keep spiraling health care costs under control.

Under control? Good for Ohioans? Does an 84% increase in your health insurance premuims sound like it's been good for you? Bottom line: YOUR rights have been put on the chopping block, your recovery as an innocent victim of preventable malpractice is now arbitrarily limited, and your premuims have gone up 84%. You as an Ohioan just got a double whammy. There's another term for this nonsense: bait and switch. Cracking down on "frivolous lawsuits" was the bait or impetus for these reforms, and the switch is that they have had no effect on your premuims.

Yet, we're currently mired in a national debate where insurance groups and medical groups are pushing for these caps...nationwide?????? Oh, by the way, the salaries of insurance company CEO's are not capped by any legislation. The caps only apply to you, the individual.

This madness reminds me of the poker scene in the movie Stripes, where the naive/ dim witted soldier shows fellow soldier Dewey Oxberger (played by John Candy) his poker hand, and Candy tells him: "Yeah, if I were you I'd bet it all." And then Ox wins the hand and takes all money. Very similar to what is going on now, minus the loveable Ox...

Good Samaritan Laws: This Is How Immunity Is Supposed To Work

Talk about a strange way to start the work week. Today I left a business meeting at 9:00 a.m., only to look across the street of a busy road to see...an elderly man lying in his driveway underneath the right front tire of his car. Apparently it rolled down his inclined driveway and ran over him. He was wedged dangerously underneath it and couldn't move. So I called 911 and in the time it took to make the call, 2 motorists had stopped and were trying to move him or the car out of the way.

I ran over to assist, and shortly after that 5 more people had stopped. One man grabbed a jack and was trying to jack up the car so we could move the man out of the way. Finally all 7 of us decided we would try to lift the car while another man pulled him out. It worked. The paramedics arrived and transported him to the hospital.

I've often heard that our "litigious society" deters people from being good samaritans because of a fear of being sued. This is a load of bull. This myth did not stop about 8 people from dropping everything and helping this man. I'm sure nobody even gave a thought to not stopping and helping.

Secondly, Ohio's Good Samaritan law protects those lending assistance from liability unless their conduct is considered "reckless," which is virtually impossible to prove, and for good reason.

Good Samaritan laws serve a useful purpose in society; they are an example of "deserved immunity" for doing the right thing. Compare that to other "immunity" laws that only serve to protect entities like school districts even when they negligently allow convicted child molesters access to elementary school children. This is an example of "undeserved immunity" for doing the wrong thing--dropping the ball--and it is wrong.

So don't ever be afraid to lend assistance in a situation like this. The law will protect you for doing the right thing.

Woman Catches Fire During Surgery And Dies

In a previous post, I wrote about an Ohio woman whose head actually caught fire during a medical procedure (Patient's Head Catches Fire...And Case Gets (Wrongly) Tossed Out Of Court). Unfortunately, this has--unbelieveably--happened again. According to a recent news story, a 65 year old Illinois woman caught fire during surgery at Vanderbilt University Hospital in Tennessee and died.

This is a classic example of medical malpractice-- an unacceptable, preventable, known complication of surgery. The fact that it might be "rare" or a "known complication" is not a defense to the hospital in this case.

But, tragically, events like this illustrate a larger problem: that, despite safety systems and "policies and procedures" in place at the finest hospitals, medical negligence still occurs. Upwards of 100,000 people die each year due to preventable medical mistakes in hospitals. That's 60,000 more people than those who are killed on our nations' highways each year. A comparison of those two figures is mind boggling.

As politicians are debating "tort reform" and medical groups complain about "frivolous lawsuits," there are equally compelling cases of tragedies like this. What we really need is a culture of safety in hospitals that prevents mistakes like this from ever happening. Reducing malpractice means less patient injuries, and less lawsuits.

Currently, we are mired in a debate where medical groups and The Chamber Of Commerce are pushing for limits or caps on what malpractice victims can recover EVEN IN LEGITIMATE CASES. Punishing the victims and limiting the wrongdoers' insurance companies' liability rings hollow when you hear about needless tragedies like this one.

Beware Of The Latest Ohio Auto Accident Personal Injury Scam

Some Ohio attorneys are reporting that auto accident victims are receiving phone calls shortly after an accident from "police officers," who are asking victims detailed questions about their injuries. Apparently, these "police officers" are providing no identification as to name, badge number, police force, and after the information is provided, the "officer" hangs up.

Here's my take on this scam. Either one of two things are going on here. The first possibility is that the insurance company for the at fault driver is calling and trying to obtain information about your injuries, particularly if you have declined to speak to the adjuster and give a "recorded statement" to him or her.

ANother possibility is that the call was initiated by an unscrupulous medical provider who is gathering information in order to solicit business and eventually convince you to come in and receive medical care. Although this is uncommon, it does happen as I've written about in my book, "Your Ohio Accident" (The book is free and is available on our blog home page by clicking on the cover). My opinion: never, ever take up an offer from any medical providers or attorneys who call after an accident offering their services. These are unscrupulous people running "settlement mills" in order to make a cheap buck off of your injury claim, and they're not looking out for your best intersts. What's more, many of these providers and attorneys are well known to insurance companies because---suprise--the same providers and attorneys show up over and over again as insurance companies investigate these claims.

Here's how to quickly end this nonsense. Ask immediately for the "officer's" department, ID or badge number, and his or her supervisor's name. If an attorney or his or her office staff calls you, ask for the name of the firm/attorney and for the attorney's Supreme Court Identification Number (we all have one as we have to be registered with the Ohio Supreme Court). This will quickly end the phone call, since our Rules Of Ethics specifically prohibit telephone solicitations.

And as soon as you hang up the phone, find yourself a competent attorney of firm to represent you. And I cover that topic in the book as well.

Tax Relief Firm Requires Customers To Give Up Right To Sue And Arbitrate Disputes...IN CALIFORNIA!

We've all seen those ads for tax relief firms which promise to take on the IRS to eliminate or reduce your tax lien. CONSUMER WARNING: Be careful what you sign when you hire one of those firms. Recently, an Ohio customer hired Tax Inc., a nationwide tax relief firm, to handle an IRS matter. The customer signed an agreement which provided at the end:

Finally, any dispute in connection with any service performed by Tax, Inc. (a "Dispute") will be resolved by binding arbitration, pursuant to the rules of the American Arbitration Association ("AAA"), as the sole and exclusive manner in which such dispute may be resolved. I hereby waive my right to a trial by jury and consent to the County of Los Angeles, State of California as the sole and exclusive jurisdiction and venue for the arbitration. I hereby irrevocably waive, to the fullest extent permitted by law, any objection I may have now or hereafter have to such venue as being on inconvenient forum. Each party will bear its own attorneys' fees in connection with any proceedings regarding a Dispute. Any and all Disputes shall be governed by, and construed and enforced in accordance with, the laws of the State of California.

Apparently dissatisfied with Tax Inc.'s services, the customer sued for breach of contract in Ohio. Based upon this clause, Tax Inc is now claiming that the customer has no right to sue in Ohio, and the case must be arbitrated in Los Angeles, California!!!

I have no idea about the merits of this customer's complaints against Tax Inc. But if this one sided clause is upheld by an Ohio court, it means that dissatisfied customers are stuck with traveling to California for an "arbitration" of their complaints. How inconvenient is that? And that's the whole point of a clause like this: to make it so impractical and burdensome that many disgruntled customers will throw up their hands and cave in. It's yet another example of the unfairness of one sided, involuntary arbitration clauses, which are fully supported by the U.S. Chamber Of Commerce as "good for business." Not so good for the consumer. And as to the "fairness" of this clause, did you notice that it was only the CUSTOMER who waived the right to sue in Ohio or a right to a jury trial? The tax service waived nothing!

So if you're considering hiring one of these services, do the following:
1. Ask to see a sample contract BEFORE you sign anything;
2. If the agreement/contract contains an arbitration clause or other waivers of your rights, ask if these clauses are mandatory, meaning "take it or leave it;"
3. If waiving your rights is a "take it or leave it" proposition, leave it! Walk away from the deal, tell them why, and consider hiring a local service that won't send a potential dispute thousands of miles away.
4. If the service says "Just sign it as is and we'll take it out" or "don't worry, we won't honor that portion of the agreement," NEVER EVER agree to this.

Tort Reform Won't Lower Health Care Costs...And... It's Socialism!

A recent article in the Orlando Sentinal summed up this whole health care debate quite succinctly: that the people screaming for medical liability reform are really screaming to have their own rights limited if they are maimed by a preventable medical mistake. And they really don't even realize it.

The reason is quite simple: people think that these "reforms" are simply cracking down on those "frivolous lawsuits" they hear about. What they don't realize is that what is being proposed is an arbitrary, one size fits all "cap" or limit on what malpractice victims can recover even when it's proven that the physician or hospital was negligent!!! This, of course, has nothing to do with getting tough on "frivolous lawsuits."

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

So where is the data? Why is nobody shouting at town hall meetings for this proof? (Could it be that some of these "concerned citizens" were sent by industry groups with bullet points about "death panels" and "socialism," or am I just a tad cynical here???)

And while we're on the topic of "socialism," those opposing health care reform have recently begun to argue that the federal govenmnent has no constitutional right to even pass federal health care reforms; rather this whole issue should be left to the states, they chirp. Yet, out of the other corner of their mouths, these same interest groups are DEMANDING intervention of the federal government in passing federal "tort reform" with the principal argument that your individual rights to hold wrongdoers accountable should be limited "for the good of the whole" so that insurance companies can save money and (certainly) pass all those savings on to all of us. Gee, this sounds like...socialism? Government stay out of health care reform, yet pass federal legislation that limits the rights of all Americans? Perhaps the medical interest groups lobbying for these mixed messages should look up the definition of schizophrenia: "a state characterized by the coexistence of contradictory or incompatible elements."

Closer to home, in 2003, Ohio passed lawsuit caps/limits on what malpractice victims can recover. So, my fellow Ohioans, six years later, are your health care premuims going down, or are they continuing to rise every year? I think we all know the answer to this. And who's laughing all the way to the bank in states where "reforms" were passed? The insurance companies. They're spending roughly a million a day to lobby for laws that will take away a lot of your rights even in legitimate cases of preventable medical mistakes. And many of you are buying it.

So shout away at your town hall meetings. Just don't shout at me when you call and tell me after all these "reforms" are passed: "I'm not one of those sue happy people but I was legitimately harmed and my life will never be the same and it's not fair that my rights have to suffer because of these laws." My response will be: "You're right, but it's too late. Money, lobbying, misinformation, and public ignorance won---again."

You never know how sweet the water is until the well runs dry...

New Ohio Supreme Court Decision May Mean Chaos For Nurses And Other Health Care Professionals

Nurses, physical therapists, nurses aides and anyone else who works in a hospital or nursing home setting: look out. Courtesy of two recent Ohio Supreme Court decisions, the liklihood of you being sued and dragged into a lawsuit just went up big time.

Here's the deal. Before these two recent decisions, if nurses or other health care professionals made a medical mistake in the scope of their employment and a patient was injured, the nurse's employer was liable for that mistake. Example: a nurse administers a wrong medication to a patient, or doesn't follow specific orders for a patient's plan of care, and the patient is injured. There was no need, and no legal requirement, to sue that nurse individually. Rather, the employer (typically the hospital or the nursing home) would be sued and liable for any damages if negligence was proven. End of story.

However, the Ohio Supreme Court has recently ruled that in order to hold the employer liable for the employee's negligent mistake, it is now necessary to also sue the employee, in certain situations. This decision has thrown almost 200 years of established legal precedent out the window. Here's the result of these decisions: MANY HOSPITALS AND NURSING HOMES ARE NOW ARGUING THAT UNLESS THE INJURED PLAINTIFF NOW SUES EVERY NURSE POTENTIALLY INVOLVED IN A NEGLIGENT MEDICAL MISTAKE, THERE IS NO CASE AGAINST THE HOSPITAL/NURSING HOME.

This reasoning potentially invites chaos for two reasons. First, in over twenty years of handling medical negligence cases, I have NEVER sued an individual nurse even if that nurse made a negligent mistake. There was no need to scare nurses or techicians by naming them personally in a lawsuit, having them worry about whatever effect it may have on their credit rating, and all the other emotional baggage that came with personally naming them in a lawsuit. And I can speak for my colleagues that NOT suing individual health care providers was standard practice. Now, we personal injury attorneys may have to comb through and decipher medical records to identify what staff may have had a role in a patient injury, and include those individuals in a lawsuit.

The second fallout of these decisions is that hospitals are now advocating that their employees must be sued. This has already happened and I have proof that a local hospital in Canton is taking this position. How twisted is it that, consequently, we medical malpractice attorneys who bring lawsuits are advocating suing fewer people, and hospitals and nursing homes are now demanding that their employees be sued? This is nonsense--nonsense on stilts!

So, nurses and other health care professionals, please take note: I never wanted to, and still don't want, to sue you! But now, I may have no choice to do so to protect my clients' rights because YOUR hospital or nursing home will now claim that, unless I don't sue you, the lawsuit must be dismissed.

No doubt if some poor nurses find themselves on the receiving end of a lawsuit, they'll be angry. Their immediate reaction will be to be angry with us "trial lawyers.". While I understand this, your anger is misplaced. If you're served with any lawsuit papers, you might want to ask your employer: why are you taking a legal position that demands that I be sued?

It remains to be seen whether courts will apply these new decisions to hospitals and nursing homes. But remember one thing: we are on your side on this issue. We DO NOT want to sue you.

Attorneys' Approval Rating Is No Suprise

Well, the results are in. The legal profession has a 25% approval rating, according to a recent Gallup poll. Although how we're viewed by the public is never more than a passing curiousity to me, the results are hardly suprising.

Some of the reasons for our low ratings are built into the system. For example, many don't understand how or why criminal defense lawyers defend those charged with a crime (despite our Constitution, which mandates it). TV shows have lampooned us for years. Many politicians are lawyers. I get all that.

But in my field of work, personal injury litigation, I think some of the contributing factors are much clearer than we would like to admit. Some of my colleagues justify our low approval ratings by pointing out that the insurance industry, corporate America, medical groups, The Chamber of Commerce, and artificial turf "citizens groups" (which are funded by most or all of the above) have been engaged in an orchestrated propaganda campaign, spanning over 40 years now, to discredit trial lawyers, lawsuits, juries--you name it--as I've written about here in a past post:

The biggest cheerleader for all this legal reform? None other than AIG Chairman and CEO ($29 million per year) Maurice Greenberg. Below is an excerpt from an excellent article in The Washington Monthly chronicling the orchestrated movement by big business and insurance companies to restrict personal injury lawsuits:


In the mid-1980s, with insurance companies hitting a slump, the insurance industry's "tort reform" movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue. The movement pursued strict caps on damage awards, tougher standards for proving liability, and caps on plaintiffs' attorney fees. The industry's crusade was taken up by small government conservatives, who believed that tort reform paralleled their own efforts to fill the federal bench with pro-business jurists and roll back government regulations. They were also upset by changes in the 1960s and 1970s that broadened legal protections for women and minorities, such as the 1964 Civil Rights Act, and the expansion of product liability doctrines that made it easier for injured consumers to force companies to compensate them for faulty products. Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced--or the injured victims they represented.

Advertising was a key component of those efforts. In 1986, Newsweek ran a series of ads sponsored by the insurance industry under the heading, "We all pay the price." The ads warned that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks--though few of these assertions turned out to be true. That same year, 1,600 tort reform measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards before adjourning.

Tort reformers still weren't satisfied but were hamstrung by the fact that most Americans didn't see lawsuits as a huge problem. After all, most people never have any contact with the legal system unless they're getting divorced. So, a group of corporate leaders, including AIG's Greenberg, set about to change that by pumping money into right-wing think tanks to prepare a body of "evidence" proving that not only was there a crisis in the courthouse but also that "we all pay the price" as a result.

Sound familiar? This machine has been running since the 1980's! And my colleagues are right-- to a degree. But what many of them refuse to mention, or fail to acknowledge, is an undeniable truth: we have, during this same time, continually shot our collective selves in both feet, arms, legs, and many vital organs as well.

Involved in a minor fender bender that was not your fault? Or did you experience a personal tragedy of losing a loved one in an automobile collision? Well, no matter what happened, you can expect 10-20 "solicitation letters" to arrive at your mailbox within a matter of days.

Watching the Indians game (although I wonder who if anyone is masochistic enough to suffer through watching them this year)? Expect to be bombarded with commercials from dozens of personal injury firms from both Ohio and who knows where else, expressing concern over your plight, and promises to deliver justice and "make them pay."

Want to order a pizza during the game? Don't expect to find your favorite shop on the back cover of the phone book. When I have to travel for a case, I always find the hotel's courtesy local phone book. No matter where I am in the U.S., there is always a law firm on the back cover. I wonder in passing if Congress passed some obscure federal law mandating law firm ads on the back covers of all phone books.

The list goes on and on. Billboards, buses, neat trucks with side panel, rotating messages, you name it. All we need to do is look in the collective mirror and we find the answer: the enemy is us. What we have done to ourselves is just as bad as what the other side has done to us. Are we really suprised that our approval rating is what it is?

Look, this is America. All of this stuff is legal under our First Amendment. The firms which advertise in this manner have every right to choose to do so. And not all of the TV ads are tasteless. But as a firm that does not engage in the practice of mass advertising, and views the practice of sending solicitation letters as downright offensive, we non-participators every right to point out that the cumulative effect of it all has done way more harm than good.

And quite frankly, I'm tired of being tarred with the same brush when I explain what I do for a living, or pick a jury and have to listen to all the complaints about offensive letters or cheesy ads.

It seems to me that have we resigned ourselves as a profession to the notion that "we'll never be popular anyway, so let's just have a race to the bottom" with all the ads and other tasteless marketing. Hmmm. Reminds me of what my Dad told me a long time ago: "If you want to get out of a hole, stop digging!"

Just turn on the TV and watch the dirt fly..........

Jury Verdicts In Product Liability Cases--And Why You Won't Hear Much About This Verdict In The Media

A jury in Texas recently decided that Yamaha was not liable for the death of a 13 year old child who died in a rollover accident while driving a "Rhino" all terrain vehicle. Yamaha stopped selling the Rhino in April, 2009. Fifty nine people have died while operating this vehicle (which looks like a souped up golf cart)and two thirds of accidents involving it have involved rollovers.

Nevertheless, this jury weighed the evidence and found that Yamaha was not negligent. It is impossible to determine what exactly the jury based its decision on, as we don't know what evidence the jury heard, what evidence was admitted or excluded from trial, etc. But the larger point is that "tort reformers" and The Chamber of Commerce are constantly arguing that juries can't be trusted and need to be "reigned in" since they are prone to sympathy for the victims' family and frequently return enormous verdicts against big corporations due to a "litigation lottery" mentality.

We personal injury attorneys who represent families in cases like this know that this argument is a an exaggeration at best and a lie at worst. The purpose of this disengenuous PR campaign is to convince legislators to pass arbitrary limits on lawsuit recoveries in order to take away the power of juries to decide these cases. Their modus operandi is this: wait for a jury anywhere to return a large verdict against a corporation, and then use the verdict as the poster child for what's wrong with our civil justice system, and why we need "tort reform."

I can't think of a more sympathetic situation than a 13 year old child who died while operating a recreational vehicle for fun. Yet, apparently this jury was not swayed by this.

You won't hear Corporate America or The Chamber squawking about this verdict because it disproves their "juries are too stupid to be trusted to decide these cases" theory. But I can guarantee you that if this jury returned a verdict for money damages in favor of the family, they'd be dusting off the old broken record about "runaway juries" and playing it again in the media.

Caps On Damages In Lawsuits--Be Careful What You Wish For...

A few years back, I represented an absolutely wonderful man who was catastrophically injured in a trucking collision. After years of litigation, we were able to settle his claim to make sure all of his future medical needs were taken care of.

I still keep in touch with him and we spoke the other day. He informed me that one of his recent medications cost $4,000 for a two week prescription. That's not a typo. He told me: "I don't know what we would have done without the settlement."

At the time of his settlement, there were no "caps" or limits on what he could recover in his lawsuit. As of 2005 in Ohio, now there ARE caps on what innocent victims can recover in any personal injury lawsuit, whether it is an injury due to malpractice, a drunk driver, or a truck driver who never should have been behind the wheel. If these caps were in place, I doubt he would have been able to afford this medication.

Recently, medical groups and insurance companies have been pushing a national cap on damages in medical lawsuits as part of health care "reform." What many people don't realize is that these proposed caps apply in cases where the injured victim is 100% innocent and when the medical provider committed indusputable malpractice. No exceptions. Essentially, these groups are saying: if you're maimed or in a wheelchair, your individual rights must be sacrificed for the good of the whole.

Gee, this sounds like....hmmm...."socialism?" You bet. The lesson: be careful what you wish for. You may just get it. And when you do, you'll be saying what a lot of Ohioans are asking me now: "why are we as innocent victims who did nothing wrong having our recovery arbitrarily capped--the only party benefitting from this are the insurance companies!"

Bingo.

Focusing On The Positive In This World

Permit an off topic diversion from legal "things." It's easy to fall into a rut. Pressures abound: work and trying to do your best for clients or your employer, raising a family, trying to run a business in one of the worst economic times ever. Nobody is immune to this. And we are at a time in this country when our civility towards one another is at an all time low. We are shouting more and more at each other and nobody seems to listen any more. Negativity, fear, and paranoia seem to be only a remote control or mouse click away.

And then you are hit with a thunderbolt of hope and decency that cleanses all the negativity away like a long, hot shower. My wife introduced me to a fellow photographer's blog that she follows. His name is Zach Arias. He recently posted an incredible video he took of a door to door salesman named Derrick. The video is unbelievely inspirational, and I encourage you to watch it (it gets really interesting after Derrick's standard sales "pitch"):



We can all use a healthy dose of perspective and inspiration as we face the challenges of life. Derrick's message does that, and let's us know that being positive in the face of adversity, no matter where you draw your inspiration from, is the only true antibiotic for what ails us.

One other thing: Zack also set up a virtual product account for Derrick to allow people to assist him. You can visit Zach's website to make a donation. It's people like Zach and Derrick like this that re-affirm my faith in the beauty of the human spirit, and it can't come at a more opportune time in our country. There is beauty and inspiration all around us. Sometimes we find it when we least expect it, by reading an Internet blog post based upon a ramdom meeting of strangers, and a video camera.

A special thanks to my wife for turning me on to this. She inspires me in so many ways...

Ohio Pharmacist Going To Jail Over Botched Prescription

Recently, Ohio pharmacist Eric Cropp was sentenced to jail over the gross mishandling of a chemotherapy prescription that tragically took the life of a two year old child. You can read about it here.

Apparently a pharmacy technician mislabeled saline solution as a chemotherapy solution and the pharmacist had ample opportunity to catch the error and didn't. He was charged with involuntary manslaughter and pled no contest. The tragic death of Emily Jerry led to the passage of Emily's law, which now mandates strict qualifications for pharmacy techs.

But I must admit to having reservations and mixed feelings about criminalizing the pharmacist's conduct in this case. Was he grossly negligent? If this article is accurate, yes. Should a malpractice lawsuit be brought against him? A no brainer. Was his conduct egregious enough to warrant imposing punitive damages against him personally in a civil malpractice lawsuit (damages specifically designed to punish wrongdoers for conduct that is more than just negligent)? Again, yes. Should he lose his license? Yes, in this case--in fact, he did.

In fairness, there is a difference between incompetently handling a prescription and transforming an act of gross malpractice/negligence into a criminal involuntary manslaughter charge. Criminally prosecuting and sentencing a medical professional is essentially unheard of as a result of a preventable medical mistake--in fact, as far as I know, this has never happened before in Ohio. And doctors hardly EVER lose their license when they commit malpractice, as I have written about here. Ohio malpractice laws allow for suing him and even imposing punitive damages against him, and are considered the only remedy for a deceased person's family.

I'm not sure what purpose charging him criminally and sentencing him to prison will serve at this point. This is a tough call for me since I have represented many families harmed by medical and pharmaceutical errors. Their lives are never the same. And we personal injurty attorneys are often portrayed (wrongly) as unfairly targeting and having no sympathy for the medical profession.

Criminally charging a medical professional in a case like this is a rare situation and is unlikely to ever occur again. Unfortunately, preventable medical errors like this one are NOT rare. As The North Carolina Board Of Pharmacy recently noted:

Communication failures between technicians
and pharmacists, IV compounder-related failures, inadequate
documentation of the exact products and amounts of additives,
and other system issues have contributed to numerous
fatal errors.

My gut reaction, however, is that it just seems to be too harsh of a penalty in this case. Perhaps I would feel differently if it were my child. It's a tragedy any way you look at it. My sympathy goes out to all involved. Hopefully some good will come of it, and the recent law changes will make us all safer. But at a minimum, it proves once again that our medical system is still frequently riddled with preventable medical mistakes. Remember that when you hear all the rhetoric about our "runaway litigation climate" and the clarion calls for "medical malpractice reform" in the current health care "debate" (and I use that term loosely after seeing how embarrasingly ugly and rude and uncivil we as a nation have become recently).

More Proof Of Doctor/Chiropractor/Attorney Treatment Mills-- Auto Accident Victims Beware

Recently I wrote here about how to identify and stay away from medical providers who are running "treatment mills" if you are an auto accident victim looking for a medical provider or an attorney. A recent online article goes into great detail as to how these "operations" worked in certain states like New Jersey. The author, Susie Madrak, was a former fraud investigator for an insurance company.

It's just more proof that you as a consumer need to be educated as to how to avoid this mess, and choose a medical provider and an attorney who will look out for your best interests, and not theirs'.

(More information about this issue is available in our FREE book, "Your Ohio Accident...And How To Level The PLaying Field." Just click on the cover of the book and we'll send you a copy).

I Was Injured In An Auto Accident--What Is My Case Worth?

Last week I met with a potential client who was injured in a collision. She had met previously with another attorney, who told her at the initial meeting what her case was worth. The client was rather taken aback by this (which is why she came to see me), and I don't blame her. After over twenty years of handling Ohio auto and trucking personal injury cases, I'm still amazed when I hear from clients that other attorneys have told them what their case is worth over the phone or at the first meeting. This is wrong, premature, and is often the byproduct of ignorance or arrogance.

Every person's case is like a fingerprint--each one is unique. Evaluating a case involves reviewing a litany of information such as the accident report, the client's medical treatment records, the client's past medical history, his or her recovery or prognosis, and all other relevant information. This process takes time, and often can't be completed until the client is finished with medical treatment.

What's more, any injury claim will often take on a life of its own. Like life in general, some cases will get better over time and some get worse. Here's a perfect example. Sometimes clients will be involved a horrible collision, like a rollover. Some will initially be stiff and sore and bruised all over. Many suffer neck or other orthopaedic complaints. Some of those orthopaedic problems require extensive follow up treatment. On the other hand, some clients, because of good genes, good pre-accident health, or sheer luck, will make remarkable recoveries with very little treatment.

You never know how or when you'll recover until after the passage of some time. That's why it's presumptuous for personal injury attorneys to presume in all knowing fashion at the initial meeting that they know what your claim is worth because they've "seen this before." Your case value should be based upon the unique facts of your case, and not what your neighbor or Uncle Willie settled his case for three years ago.

At the right time, you should be told a monetary range of what your case is worth. The initial client meeting is the wrong time. But hey, if you want to choose an attorney who can tell you in drive thru fashion what your case is worth, that's your choice. Just remember that with any drive thru, sometimes they mess up your order...

I FELL /SLIPPED IN A STORE. IS THE STORE LIABLE FOR MY MEDICAL BILLS, LOST WAGES, OR PAIN AND SUFFERING?

This is a frequently asked question. First, let’s knock down a myth that some people believe when it comes to injuries that occur on someone’s premises, whether it’s a home or a business.

General Rule No 1: You as a landowner or business owner are NOT automatically liable if someone slips or trips or falls on your property. You are only liable if you as a homeowner, or your employees if you own a business, were NEGLIGENT.

This same rule holds true if YOU were injured or fell in a store; the store is not liable unless you prove it was negligent. However, courtesy of two recent Ohio Supreme Court cases, proving a store’s negligence just got a lot harder. First, you now have to show that the hazard that caused you to fall was not “open and obvious” or your case will get thrown out of court.

EXAMPLE: You are pushing a shopping cart in a grocery store. A stock clerk negligently spills some detergent or leaves a pallet on the floor at the end of an isle. Problem: you can’t see it because it’s lying in an area where you are turning the corner as you push your cart. You fall or trip and break your hip. You tell the manager: “I had no idea it was there because I was pushing my cart and coming around the corner.”

Under the “open and obvious” rule, the store can say, “well, it was open and obvious if you had just looked where you were going” and the chances are great that your case will get thrown out of court. Never mind the fact that the detergent or pallet or whatever was on the floor HAD NO BUSINESS BEING THERE AND THE STORE KNEW ABOUT IT AND NEGLIGENTLY CREATED THE HAZARD FOR UNSUSPECTING SHOPPERS! In fact, the store employees could actually ignore the store manager's order to clean the spill immediately and it wouldn't matter, as long as the condition is "open and obvious."

It gets worse. Under a June, 2009 Ohio Supreme Court case, a business owner can even violate the provisions of The Ohio Basic Building Code (which regulates things like stair heighth, handrails, and other safety features in buildings) and still use the open and obvious defense to avoid responsibility for its own negligence!

In that case, a frail 78 year old man who carried an oxygen tank called ahead for a motel room and specifically reserved a handicapped room so he wouldn’t have to climb any stairs. When he and his wife arrived, the room was already rented, so they were given a room requiring the man to climb two steps. Here was the problem: the steps were in violation of the building code because they were almost 2.5 inches higher than what was legally allowed. You can guess what happened: he fell, broke his hip, and died three months later from all kinds of complications.

The injured man went out of his way to avoid having to negotiate any steps, was forced to negotiate two steps that were too high, in admitted violation of the Ohio Building Code, and STILL got his case tossed out of court. Why? The condition of the steps were “open and obvious.” This ruling just made it a lot harder to pursue lawsuits where someone is injured on another's business property.

These rulings are GREAT for the insurance companies who insure stores, motels, malls, and other businesses. Now, no matter what condition a store is in, and no matter how preventable these falls are, department stores and big retailers can now leave huge messes, objects, and clutter wherever they want. And they can potentially deny responsibility of preventable, legitimate injuries as long as their mess was “open and obvious.” And you as the injured consumer are left holding the bag.

Doctor Operates On Wrong Leg Twice And Is Still Practicing Medicine

According to a recent article, a New York surgeon operated on the wrong leg--TWICE. A couple of things are obvious. First, this guy has a real problem with attention to detail. He may even be a good surgeon, but this is a sign that he is too hurried for whatever reason. Some may argue that doing this once, when so easily preventable, is inexcusable, much less when it happens twice.

Second, most reasonable people would expect that the hospital, or the state medical board which licenses and disciplines doctors, would really drop the hammer on this guy. Reasonable options might include: (a) suspending his license for a period of time; (b) Revoking it; or(c) terminating his privileges at the hospitals where he operates.

Wrong. How about option (d):...ready for this....he was CENSORED AND PUT ON PROBATION! I'm sure his scalpel is just quivering over the cruel punishment of a "reprimand."

Indignation aside, this case provides two valuable teaching points on Ohio malpractice cases and laws. Juries who hear these cases arrive at the courthouse with a lot of misperceptions about malpractice litigation. Juror Misconception No. 1:"We were concerned that if we returned a verdict against the doctor, he would lose his license." Not true. Ohio's State Medical Board is similar to New York's in that REPEATED MALPRACTICE is usually not enough in most instances to cause a doctor to lose his license. Conduct like stealing or selling narcotics, billing fraud, and sexually abusing patients is more likely to get a ticket yanked than a pattern of malpractice. Sad, but true.

Juror Misconception No. 2: "We were reluctant to find the doctor negligent because there was no previous history of similar malpractice." This is another red herring. If Dr. Wrong Leg had operated in Ohio on the wrong leg once before, and was sued for malpractice for doing it a second time, chances are that his first negligent wrong leg surgery would be inadmissible at trial anyway! In a malpractice trial, we do not have to show that a doctor had a history of malpractice. A perfectly competent doctor can make a preventable mistake on a bad day and injure a patient. Our Rules Of Evidence would generally exclude Dr Wrong Leg's prior botched surgery unless he got on the stand and denied ever having operated on the wrong leg before. So, in some instances, there may be a history of similar malpractice that we're not even allowed to talk about in trial.

Physicians' groups, the AMA, and insurance companies are famous for spending millions arguing that doctors are leaving the practice due to lawsuits and juries are going wild with "jackpot justice" jury verdicts. We see here the reality of the situation. Operating on the wrong leg twice gets the doctor a slap on the wrist, and if he's sued for malpractice, chances are the jury will never be told of his first wrong leg mishap. Now you hopefully can see what I mean when I said that Ohio malpractice cases and litigation are fraught with misconceptions.

70,000 Reasons For Hiring An Attorney To Handle Your Ohio Truck Accident Injury Claim

True story. My clients were clobbered by a commercial truck in Pennsylvania. The husband had $70,000 in medical bills, which were paid by his health insurance company. For months the husband and wife had been dealing on their own with the trucking company’s insurance adjuster. When the insurance company finally made them an offer over a year after the crash, the adjuster told them: “From our offer of settlment, you have to repay your health insurance company for the $70,000 it paid for your medical bills” (this is known as "subrogation"). Not happy with the offer, they called me, and brought in their health insurance manual.

Sure enough, the health insurance manual contained a standard “subrogation” clause, which generally provides that the injured person must reimburse the health insurance company out of his or her settlement for any accident related bills it paid. However, upon reading the manual further, I discovered that the health insurance company made a colossal mistake in its subrogation clause: its claim of reimbursement was limited to dental bills paid due to a collision. The manual had inadvertently omitted “medical bills” from its subrogation clause!!! Translation: the health insurance company had no right to be reimbursed for the $70,000 it paid in medical bills.

The upshot? The adjuster actually gave bad legal advice to the clients that they had to reimburse their health insurance company. When I took the case, I wrote the health insurance company a letter and informed them that, by virtue of their own language, my clients did not owe them a penny in reimbursement, since my client had $70,000 in medical bills but no dental bills! After a few weeks, I got a return letter from the health insurer acknowledging that we were right, and they dropped their reimbursement claim. Obviously, they goofed in writing the manual and were therefore stuck with their own limiting language.

As it turns out, both the trucking company’s insurance company and the health insurance company were wrong! Both assumed, wrongly, that the $70,000 reimbursement claim was valid. The adjuster who was dealing with the clients did nothing sinister; he simply had no interest in checking the clients’ benefits manual and was content to assume that because the health insurance company sent him a letter claiming reimbursement, their claim was therefore valid. And the clients' own health insurance company was either totally ignorant of its own provisions in its manual, or was deceptively trying to pull one over on the clients. When I informed the adjuster during negotiations that the health insurance company had abandoned its claim for the $70,000, he was shocked.

Simply reviewing the health benefits manual and sending a few letters saved my clients well over $70,000 when we settled the claim. It is yet another example of application of "Rule No.1," and proves that insurance companies have no vested interest in taking the time to look out for the injured person’s best interests.

The story above is an excerpt from my FREE book "Your Ohio Accident...And How To Level Your Playing Field." To find out what "Rule No. 1" is, and other information about what you can expect if you're involved in a collision, simply click on the cover of the book on the blog home page.

My TV Interview On Tort Reform

A few months ago I participated in a TV interview on tort reform. With a lot of help from people much more technologically adept than me, including my way smart wife, we were able to make some reproducible clips of the show. One is below:

Click To Play

"Eating While Driving" Accidents...Ten Reasons Why We'll Never Run Out Of Business

A little Friday irreverance is in order.

Insurance.com recently posted "The Top Ten Most Dangerous Foods To Eat While Driving." The list of "dangerous foods" struck me as both bizarre and arbitrary. Coming in at No 2 was "hot soup." Seriously--who eats hot soup while driving ("Hold on dear, let me chug this vegetable soup before I make this lane change")? No 4 was "chili dogs." Not hot dogs with mustard, ketchup, onions, relish, or any other combination of 36 condiments you can pile on a dog.

No. 6 was "barbequed foods." Some may ask the same question I raised about hot soup--who in their right mind would eat ribs or wings while driving? I can honestly report that, a few years ago while on a family vacation, we actually witnessed "wings dude" eating wings and licking his fingers and driving down I-77. Hilarious, but not a pretty sight.

Failing to make the top ten list, but with a strong showing nonetheless, were:
Spaghetti and meatballs and lasagna
Boiling hot baked potatoes
3 layer cakes
Moo Goo Gai Pan (worse with chopsticks)
Banana splits
Any standard 4 or more toppings pizza
Beef stew
Anything made--er--pulvarized in a crock pot
Open faced sandwiches with gravy
Grape Nuts cereal (ever try to get through a bowl--hope you're going on at least a 2 hour drive).

(OK, I made up the second list). Given all the cellphone usage and texting while driving, I'm sure it won't be long until I see someone driving while texting and eating spaghetti and meatballs and washing it down with piping hot coffee.

Now you know why we personal injury attorneys will never be out of work, despite all The Chamber Of Commerces' ad campaigns targeted to put us all out of business. You just can't account for or legislate away a lack of common sense or human idiocy...

Should You Sign An Auto Insurance Company's "Standard" Medical Authorization?

If you've been in an auto accident, this is what you're going to hear from the at fault party's insurance adjuster over the phone: "Before we get started on your claim or pay any bills, our company policy requires you to sign and return our standard medical authorization."

By signing the authorization, you're giving the insurance company a blank ticket to fish around in your entire medical history, even if it's unrelated to the torn rotator cuff you received due to the crash, to use a simple example. Anything is now fair game for them to get their hands on--counseling, psychological, OB-GYN records-you name it.

I've had clients tell me: "Well, I have nothing to hide." And you shouldn't. Any prior history of any injuries or conditions affecting your collision injuries SHOULD be divulged to your attorney, and the insurance company should know about it as well. We ALL need to know if you have any previous injuries or conditions to any part of your body that was injured in the crash.

But under Ohio law, we have a doctor-patient privilege, even when you are involved in an accident. That privilege still protects medical information that is unrelated to your injury claim. And particularly with elderly clients, insurance companies love to obtain Uncle Joe's medical records 20 years before the drunk driver slammed him and tore his rotator cuff, and then argue "gee, we see that his kidneys were going bad and he had a knee replacement and was on high blood pressure medication, so that rotator cuff tear wasn't that big of a deal."

That's the problem with allowing insurance companies to canvass your unrelated medical records--it allows them to take unrelated, privileged information and paint you as "damaged goods" for the purpose of paying less on your claim.

A recent Ohio case (Wooten v. Westfield Insurance Co, 2009-Ohio-494) ruled that an insurance company had no right to demand that the injured person sign a blank authorization/"blank ticket" until it could be determined by a judge, in private (known as an in camera inspection) as to whether the records sought had any bearing on the person's accident injuries. The attorney in that case did an excellent job of lawyering to protect his client's privacy, and had to go all the way to the Court Of Appeals to do it.

This case sends insurance companies a message: you have no right to demand the right to fish around in a person's past medical history and grab anything you want.

The proper way to handle this is for the attorney to freely divulge what past medical information is related to the client's injury claim, and protect from disclosure what is unrelated. But you won't be afforded that luxury if you talk to the at fault insurance company adjuster over the phone shortly after the crash. Instead, you'll hear the words "company policy" and "mandatory" about 13 times. ALthough it's not the adjuster's fault--after all, he or she is just following company policies, it doesn't mean you have to accept it.

NOTE: This rule MAY be different if your own insurance company is asking you to sign a blank authorization. There's a little fine print clause in your insurance contract known as a "cooperation clause" that may require you to sign your own insurance company's authorization. That's why it's important to ask an attorney about your rights before you sign any papers after an accident.

New York Attorney Marc Drier Should Get Life In Prison If You Ask Me....

Disgraced New York attorney Marc Drier, who defrauded numerous clients out of millions in a Madoff type Ponzi scheme, was sentenced to 20 years in prison recently. According to this New York Times article, Drier funded his Ponzi scheme by stealing settlement funds from a client, and it snowballed from there. His reason for hatching this scheme? He was only making about $400,000 per year and felt inadequate and a sense of underachievement compared to some of his high society New York colleagues. So he went out and bought lots of yachts, cars, and art with his ill gotten gains.

Seriously? You can't get by on making more than ten times what the average American makes, so you start stealing from and defrauding countless clients to support a lavish lifestyle? And for this you only get 20 years in the slammer? The government argued for 145 years in prison--what I call a "good start" for a sentence.

Between frauds like this guy, sleazy commercials, and offensive solicitation letters that arrive at crash victims' mailboxes before they even get the hospital bill, it's no wonder that we have little to no credibility with the public. This sea of sleaze is one of the main reasons why I choose to blog. Our firm does not advertise, and I absolutely hate lawyer solicitation letters with every fiber of my being. They are the WORST thing ever that's happened to us as a profession, in my opinion.

At the end of the day, all I can offer is to share some of my information and experiences from over 20 years of representing accident victims by publishing this blog and some of the informational books I've written. If it helps answer someone's legal questions, fine. And if my blog helps an accident victim in the decision to hire me or another competent lawyer, that's OK too. As far as I'm concerned, taking the time to educate people in need in a tiny corner of the Internet world is infinitely superior to cheesy and tasteless commercials and offensive solicitation letters. Marc Drier is living proof that some of these "high powered" attorneys are not all they're cracked up to be.

I'll bet he never blogged. Sounds like he had too many toys to play with anyway...

Excellent Advice On How To Be Honest About Your Injury Claim

This is a fantastic article by Virginia attorney Ben Glass and required reading on how you should conduct yourself if you are making an injury claim. In short, be honest! Be honest with your attorney, your health care providers, your employer, and anyone else you come in contact with during the life of your claim. If you exaggerate your claim and try to "pad" your losses, it will eventually unravel.

The advice in this article is what I've been preaching to my clients for over twenty years now, as I've written in my book, "Your Ohio Accident...And How To Level Your Playing Field"--only Ben has really nailed it in the above article.

Remember, insurance companies would love to "catch" you in a lie or an exaggeration. It's what they're looking for, and it's what they're good at, and they ought to be--they spend millions each year trying to do just that. By being honest, you take away a major bullet in their arsenal.

Is it really any suprise that honesty is always the best policy? Any second grader is wise enough to know that...

We Lost An Ohio Icon And Legend

Yesterday, Stark County and The State of Ohio lost one of the finest attorneys ever to step foot in a courtroom. Eugene P. Okey was one of the most feared and respected personal injury attorneys in Ohio in the 70's, 80's and even early 90's. His courtroom victories were legendary--numerous multimillion dollar jury verdicts, the landmark Jeep rollover case, which set legal precedent in Ohio and in the U.S. and is still good law today, and numerous medical malpractice jury verdicts. He earned a national reputation for his representation of injury victims and his trial skills.

But more than his brilliance as a lawyer, he was an even finer person. I had the privilege of working with and for him for almost 15 years. It was very easy to see why he was so successful and so highly thought of. First, he came from modest means and had to hone all of his skills the hard way--by trying scores of jury trials, learning what worked and what didn't, and relying on his own instincts. This process turned him into a great trial lawyer--one who feared nothing, made him able to think on his feet, and adapt to the changing winds and momentum shifts of any trial. Later, with the help of his two sons and daughter, all excellent lawyers in their own right, he built a fantastic law firm.

Secondly, he had an incredible gift for reading people and connecting with them. I call this "street smarts," and it's a gift that most "elite" law grads or attorneys simply can't develop or hone. He didn't read law books; he read people. I think he was good at reading witnesses and juries because he knew how to treat people, and he treated everybody the same--with dignity, respect, and courtesy, both inside and outside the courtroom. From the waitress at lunch to the witness or court reporter at trial, he was genuinely nice and friendly to everybody, and he had an incredible sense of humor. He was a people person, a sometimes playful practical joker, and he never took himself too seriously, despite his success. Although he had a reputation for handling "big cases," he continued to work on smaller cases too, where clients just needed their bills and lost wages paid. Didn't matter to him--he was simply helping people.

I had the privilege of sitting in on a few of his trials. It was impossible for juries or observers not to like him. Oh, there were a few occasions where I saw him get in someone's face during cross examination in the heat of a trial, but he NEVER did that until that witness crossed the bounds of decency, decorum, or was outright taking liberty with the oath to tell the truth. Another sign of a great trial lawyer--learning the art of the effective counterpunch.

His life is testimony to the fact that honest, decent, humble, and hard working people will succeed. One of my favorite quotes on life in general is from Ralph Waldo Emerson, who once remarked: "It's hard to be simple enough to be good."
That describes Mr. Okey perfectly. He will be greatly missed. May he rest in peace.

And "now he knows."

Strip Searching Middle School Students--Another Victory For Ohio School Immunity

Recently, The U.S. Supreme Court ruled in a 8-1 decision that a strip search of a 13 year old girl at an Arizona middle school was an unconstitutional violation of her Fourth Amendment right against unreasonable search and seizure. According to press accounts and the official opinion, the school suspected that the girl was in possession of prescription strength ibuprofen, so they searched her person and her backpack. When the initial search revealed no pills, they strip searched her. The strip search revealed--again--no pills.

What is troubling about this ruling is that the Court also ruled that school officials who ordered/conducted the illegal search were immune from liability unless they "blatently violated clearly established law." So let me get this straight: a minor's Constitutional rights are violated, yet there is no accountability or liability for violating them. Isn't our Constitution and Bill Of Rights "clearly established law?" If school officials are immune from any liability for illegally strip searching a 13 year old girl for suspected possession of ibuprofen, then what would constitute a "blatent violation of clearly established law?" The Supreme Court's message seems to be: don't violate a students constitutional rights, but you still won't ever be liable in most instances. So what good are our Constitutional protections if there is no remedy for their violation?

More importantly, the Court left it up to Arizona state law to determine if the school district was liable for the actions of the staff who illegally strip searched this young girl. I don't know about Arizona law, but if this happened in Ohio, our state "immunity laws" would give 100% legal immunity to Ohio school districts. As I've written about before, the general rule passed by our Legislature is that schools are not liable for any act of harm or negligence. There are 5 narrow exceptions to this rule, and illegally strip searcing a 13 year old girl does not meet one of the 5 exceptions. Neither does molesting or sexually assaulting a student on school property.

So there you have it. Basically, schools in Ohio are free to violate a student's constitutional rights and state immunity laws trump our federal Constitution when it comes to making schools accountable for crossing the line. This whole issue might not seem like a big deal to some people, but we're not talking about denying Jimmy his afternoon juice break or making him clean erasers after school (believe me, I was an expert at cleaning erasers at Lincoln Elementary in Toronto, Ohio--I got quite used to the neat little machine they had in the gym). Strip searching 13 year old girls and molesting students is serious stuff. I can assure you you'd feel differently if it was your child that was strip searched or molested. There is a saying in the law that "immunity breeds irresponsibility," and the more free legal passes you give a school district for its bad choices and lack of due diligence, the less likely policies and school conduct are to change.

The problem here is there's no balance or sense of fairness to all these immunity laws passed by our Legislature. It's a classic case of the tail wagging the dog, particularly when a violation of one of our most cherished constitutional protections creates no legal accountability once Jimmy walks through the front door of his school.

Rudy Giuliani--Tort Reform Hypocrite

Normally a story about Andrew Guiliani suing Duke University for dismissing him from the golf team would not catch my eye. However, young Guiliani's father, Rudy, has been a notorious basher of lawyers and lawsuits, and an ardent supporter of "tort reform." As I have written about repeatedly, tort reform is code speak for big business and insurance companies' never ending, multimillion dollar push to pass laws to restrict lawsuits, make them more difficult to pursue, and even limit what injured persons can recover for legitimate cases of injury or wrongdoing.

Tort reform was a centerpiece of Rudy's (failed) presidential platform, as evidenced by this clip. In fact, if memory serves, as he was giving his concession speech, he pleaded to the crowd words to the effect "can we please have less lawsuits?"

In fairness to Rudy, his son is a grown man and I have no idea whether Rudy had any involvement in, or support of, this lawsuit. But, I wonder how Dad would feel about a lawsuit over his son being dismissed from a college golf team--one where the magistrate who's hearing the case has recommended that it be dismissed? If Rudy is to be consistent in his position (and we all know that politicians are consistent in their closely held positions, right?) shouldn't he be calling for his son to pay Duke University's legal fees, since Rudy has been a big proponent of "loser pays" laws? After all, if his son loses the lawsuit, hasn't Duke University been "victimized" by a frivolous lawsuit, as Rudy mentioned in the video clip about the dry cleaners who were sued for millions for losing a set of pants?

Hmmm. Somehow I don't think we'll be hearing from Rudy on this one any time soon. And there's a couple reasons for that. After over 20 years of representing people in lawsuits, there are 2 fundamental truths that hold true every time. One is the true definition of a "frivolous lawsuit": One other than MINE. Frivolous lawsuits are ones that OTHER people file.

And the second fundamental truth I've come to learn is that, as a general rule, people look at "tort reform" the same way they look at prisons: sounds good as long as the prison is being built in someone else's back yard, or the legal "reforms" are applied to someone else's case. But when the prison is going in the middle of your town, or in this case the "tort reform" laws begin to directly affect you and your case, suddenly it doesn't look so good.

Care to respond Rudy? Anyone? Mr. Buehler?

Drunk Drivers and Uninsured/Underinsured Motorists' Coverage--What You Need To Know

According to a recent report from The National Highway Traffic Safety Association (NHTSA), 566 Ohioans lost their lives to drunk drivers in 2007. That's enough to fill a high school gymnasium. Nationally, 12,998 people lost their lives--enough to fill a football stadium. It's mind boggling to even think about those numbers.

After over tewnty years of representing victims of drunk driving victims, there is one common denominator in drunk driving crashes: most of them carry little to no liability insurance. What this means for the victims is that they eventually have to pursue a claim against their own insurance company to pay for their bills, lost wages, physical injuries, and any future medical costs like surgeries and medications. This is the purpose of buying "uninsured/underinsured motorists'" coverage with your own insurance company.

However, in Ohio, there are 2 major reasons why your "uninusured/underinsured motorists" coverage is probably lousy and won't be enough to protect you financially if you are injured by a drunk driver. There is only 1 solution to correct this problem.

The answer is in my free book: "How To Buy Car Insurance In Ohio To Protect Your Family." Just click on the graphic of the book and you can obtain a free copy.

Mandatory Binding Arbitration--Saying Goodbye To Your Rights.

Signing up for a credit card. Building a house or adding on to it. Buying a car. Putting a loved one in a nursing home. Buying a computer or even a new computer battery (my own personal experience). The list goes on and on. Everywhere we turn, companies, builders, and even medical providers are jamming fine print, mandatory, binding arbitration clauses in consumers' faces. In the vast majority of cases, consumers have no choice: either agree to the clause, or no deal. Just try to bargain out of these one sided clauses when you buy a credit card or sign with a home builder and see what happens.

The reason is simple: corporate America wants to bypass the court system and your right to seek redress for any ripoffs, fraud, defective products, etc. This is a rigged game, as a recent NPR report illustrates.

My own experience with "binding arbitration" is 100% consistent with this report. In a simple defective concrete driveway dispute with a builder, my client was forced into binding arbitration. The costs and fees were HORRRENDOUS and because the dispute was under $10,000, we were not even allowed a simple hearing. Under this "system," the arbitrator (who was charging over $300 per hour as I recall)was to "decide" the case based solely upon a "document review." Sounds fair, eh?

These arbitration clauses are a joke and corporate America knows it. The system reminds me of the dictator who announces that "you will be given a fair hearing, and then you will be taken out and shot!"

There is a movement right now in Congress to reform this railroading and make binding arbitration VOLUNTARY, meaning that you as a consumer are free to agree to it, or politely decline it. But the credit card companies are fighting it tooth and nail. These are the same benevolent folks who are looking to strap on additional fees to customers who pay their bills on time in response to the recently passed, consumer friendly "Credit Card Bill of Rights."

If you think these clauses are fair and should continue, check this out. In 2000, auto dealers swarmed on Washington complaining that auto manufacturerers were bullying them and they needed legal relief. Why? Auto manufacturers were inserting mandatory, binding arbitration clauses into their franchise agreements. Auto dealers wanted to retain the right to sue in court when it came to protecting their corporate interests with manufacturers.

So here's the lesson: when these one sided clauses are used AGAINST corporations, they're bad and need to be excised. But when they're used by corporate America against CONSUMERS, they're wonderful and cost effective "dispute mechanisms."

Hospital Falls And Medicare's New "Never Event" Rules--Can Hospitals "Restrain" Themselves?

As of October, 2008, Medicare announced that it would no longer reimburse hospitals for certain injuries and conditions, known as "never events," that Medicare believes should never happen in hospitals. For example, "wrong site surgery" (operating on the wrong body part) and leaving foreign objects in patients during surgeries are two examples of "never events." Translation: if these things happen in hospitals, Medicare will not reimburse hospitals for the medical costs for the surgeries, follow up care, etc.

So far, so good. It always slayed me that, before these new rules, hospitals or doctors could actually be paid for entirely preventable medical mishaps like leaving foreign objects in patients. But Medicare also added hospital falls to this list. Here's where things get a bit dicey.

As I have written before, patients injured in hospital falls can be tricky situations. First, many falls are preventable due to simple inattention, failure to follow established rules and protocols, inadequate staffing, etc. However, in fairness to hospitals, some patient falls are not preventable even with the best of care and even if all the rules and procedures are followed. I have both successfully litigated some hospital fall cases, and have turned down others in cases where I felt that there was no negligence involved, or it would be difficult to prove.

Medicare's purpose in formulating its list of "never events" is clear: to promote an increased emphasis on patient safety by creating a financial disincentive to hospitals in the event that these "never events" continue to occur.

Enter the "law of unintended consequences." According to a recent article in The Boston Globe, a Harvard Medical School Physician believes that Medicare's refusal to pay for patient falls in hospitals will encourage hospitals to use more
physical restraints to reduce the risk of falls. While another physician in the article disagreed with this assessment, the point is that hospitals may be considering increased use of physical restraints in the future as a method of preventing falls.

What's the lessson of all this if you have a loved one in the hospital? If you are noticing that he or she is being regularly restrained, you are entitled to know if there is a legitimate medical reason for it, or whether the hospital has instituted an aggressive restraint policy as a result of these new Medicare rules. At least it's a conversation worth having with the nursing manager. The bottom line is that if a hospital is going to restrain patients, it should be for legitimate medical reasons rather than financial ones...

Auto Policies and Exclusions: Dirty Secrets Insurance Companies Don't Want You To Know

It's about time that the auto insurance industry's use of under radar, fine print "exclusions" to deny coverage under "full coverage" auto policies is exposed to the light of day. Recently, The Ohio Association For Justice (OAJ) issued a comprehensive report (authored by yours truly) highlighting how companies are inserting "interfamily exclusions" in auto policies to deny coverage for family members who are occupying the family vehicle and injured by a fellow family member's negligence. As a result, the Cleveland Plain Dealer and The Dayton Daily News wrote about the unfairness of these exclusions in recent articles. Two examples of this exclusion in real world situations shine a spotlight on how unfair and ridiculous this exclusion is.

Example no 1: You and your family (wife, two minor children) are taking a family vacation in your fully insured family car. You fall asleep at the wheel, and seriously injure your spouse and children. Your "full coverage" auto policy has "medical payments" coverage of only $5,000 per person. But it also includes $500,000 in liability coverage and an equal amount in "uninsured/underinsured motorists' coverage.

Result: your family has no right to make a claim under the liability portion of the policy for your driving negligence, due to the "family exclusion." Similarly, the injured family members have no right to make a claim under the uninsured/underinsured motorists' provision of your policy because of a similar exclusion. Translated: all your insurance company owes is the $5,000 per person limits, for a total of $15,000, even if the family's total medical bills are $250,000, for example, and even though your "full coverage" policy has $500,000 in coverage.

Example No 2: You are driving your "fully insured" vehicle on a golf or fishing or shopping trip with friends. You allow one of your friends to drive your car and he/she negligently wrecks the car, seriously injuring you. Your medical bills are over $100,000 and you've lost your yearly wages of $50,000 due to your injuries. You come to learn afterwards that your friend has minimum liability limits (a paltry 12,500 in Ohio), making him "underinsured" to cover all your injuries.

But you're not concerned. You have a "full coverage" auto policy that includes $500,000 of underinsured motorists coverage that your agent said would protect you if injured by an "underinsured motorist."

Result: you can't collect anything other than your $5,000 medical payment limits from your "full coverage" auto policy. Why? Your liability coverage with the "family" exclusion prohibits you from recovering under the liability portion of the policy. But wait, you say, doesn't your "underinsured motorists" coverage allow you to collect up to your $500,000 limits if injured by an "underinsured motorist," i.e. your friend with minimum limits? Not under Ohio law--your "underinsured motorists" coverage exclusion says that your own vehicle can't be considered an "underinsured" vehicle. Therefore, you have NO coverage under your "full coverage" policy for any losses over $5000.

Does this make any sense at all? Are you sufficiently confused at this point? You should be--and that's the point. There's no way for the public to know about or even comprehend these exclusions when they buy auto insurance. Before 2001, these exclusions were unenforceable. However, a recent legislative change to Ohio law has allowed insurance companies to re-insert these (and other) one sided exclusions into auto policies with impunity. Insurance companies are now allowed to make these policies as onerous and one sided as they please, and the Ohio Supreme Court has upheld certain exclusions under this 2001 law.

Now here's where these exclusions REALLY get ridiculous and downright bizarre. In the "family vacation" example, if you took a family friend on the family vacation and he was injured, he could collect up to the $500,000 liability limits--even though your family members, whom you paid coverage for, could not! And in the "friends outing" example, any other non-driving friends injured in your vehicle could recover up to the limits of your $500,000 liability coverage for your friend's driving mistake while driving your vehicle. In fact, if you picked up a HITCHIKER on your trip, he would be covered as well, but you and your family members would have no coverage!

No consumers in their right mind would expect that their family would not be covered while injured in the family car, while friends or strangers injured in the same vehicle would be covered. Were you told this by your agent or friendly online "customer service representative" when you were sold your "full coverage" policy? This tangled web of insurance double speak and confusion proves that the industry's use, and the public's understanding of, a "full coverage auto policy" has become a garbage, meaningless term. It has become an oxymoron, like "jumbo shrimp" or "hot water heater." And you're paying hundreds or thousands in premuims for this "coverage." The bottom line is that you as a consumer are not getting the coverage you paid for when you need it the most: to protect yourself and your family.

It is OAJ's hope that these "rigged game" exclusions are brought to the attention of the public and The Ohio Legislature, and some corrective legislation gets rid of them once and for all.