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Wrong Dose of Anticoagulation and Stroke

Shared by David A. Kulwicki, Esq. | Mishkind Kulwicki Law Co., L.P.A.

Improper dosing of anticoagulation can result in stroke, pulmonary embolism, bleeding, or death.  Despite the great risk, a recent study published by the New England Journal of Medicine (NEJM) shows that underdosing and overdosing of newer blood thinner medications is rampant.  The study focused on the use of novel direct acting oral anticoagulants (DOACs), such as Pradaxa, Xarelto, Savaysa and Eliquis, in people with atrial fibrillation (AF).

AF is a condition where the heart beats irregularly due to errant electrical pulses.  When at extended rest, blood within the heart can become static (stasis) and form blood clots.  The heart then beats forcefully, expelling the blot clot into the blood stream.  A mobile blood clot is called an embolism.  Embolisms can travel through the blood stream into the brain, where they can block the supply of blood and oxygen to the brain.  Blockage, or occlusion, causes brain tissue to die.  A “stroke” refers to the clinical effects of permanently damaged brain tissue, which include brain damage, cognitive impairment, motor dysfunction, loss of bowel and bladder control and paralysis.

The risk of stroke from AF is higher in some patient than others.  Doctors should determine this risk by calculating the patient’s CHADS2 score, as well as consideration of other less common risk factors.  The CHADS2 score is based on the fact that (C)ongestive heart failure, (H)ypertension, (A)ge over 75, (D)iabetes and prior (S)troke or TIA symptoms raise the risk of stroke in patients having AF.  Anticoagulation is used to prevent clots from forming while the heart is at extended rest.

Older anticoagulation drugs such as Warfarin and Coumadin required that the patient have routine blood work done to ensure that the patient’s clotting times remained in the proper range.  Too much anticoagulation and the patient is at risk of bleeding, including a brain bleed called a hemorrhagic stroke.  Too little anticoagulation and the patient remains at risk of blood clots.  The amount of anticoagulation required to keep the patient’s clotting times (INR) in the therapeutic range varies from patient-to-patient, and can be affected by diet and other medications.  So frequent blood checks were necessary.

The newer class of anticoagulants, the NOACs, were designed to reduce the amount of blood work needed to safely monitor a patient.  Theoretically, the hassle and discomfort of frequent blood draws led to noncompliance by patients, thereby putting them at unnecessary risk of an embolic stroke.  As an Ohio stroke lawyer, I have monitored the approval process for NOACs.  Notoriously corrupt pharmaceutical companies stand to make huge profits by capturing market share in the sale of anticoagulants.  Several months ago, I warned that these drugs may not be ready for prime time, given my skepticism about the industry-influenced vetting process.  Soon thereafter, a number of fatalities related to side effects were reported.

The NEJM study found that in 43% of patients with AF and poor kidney function, physicians failed to adjust the dose downward to account for drug retention.   Those patients on certain DOACs faced an increased risk of a bleeding.  13% of patients with normal kidney function were inexplicably prescribed lower than normal doses. Underdose increases the risk of stroke fivefold when compared with the standard dose for patients on certain DOACs. When a physician fails to prescribe a proper dose of any medication, and severe injury results, they are subject to a medical malpractice lawsuit under Ohio law.

People interested in learning more about our firm's legal services, including medical malpractice in Ohio, may ask questions or send us information about a particular case by phone or email. There is no charge for contacting us regarding your inquiry. A member of our medical-legal team will respond within 24 hours.

Local Dog Ordinances Lowering the Number of Dog Bites

Shared by Slater & Zurz

Cities throughout the United States with dog ordinances or those that ban certain types of dogs, primarily pit bull breeds, have fewer overall dog bites recorded, according to the website, which warns the public about breeds it has labeled dangerous.

About 700 municipalities have reacted to the pit bull’s reputation by enacting restrictions on the breed, DogsBite asserts in a September 2015 report. (Pit bull advocates point out that a pit bull is not an actual breed but a generic term for a short-haired, muscular, mixed breed dog.)

According to a 2000 study by the American Veterinary Medical Association (AMVA) who researched 238 dog-related fatalities from 1979 to 1998, pit bulls or pit bull mixes killed 76 people, almost one-third of the total number. A more recent review of the study, however, raised doubts that breeds were reliably identified in data about the fatal attacks.

Examples of The Effects of Dog Ordinances reported the following effects of dog restrictions in various cities. Their sources (mostly newspaper stories) are listed after each posting of data.

The city of Ottumwa, Iowa has had no recorded pit bull attacks for several years after totally banning the dogs in 2003. In 2001 and 2002, the city’s police chief said there were 18 dog attacks including the death of a 21-month-old girl in August 2002. Three other attacks against children were reported in the year and a half before the ban became law.

Pawtucket, Rhode Island released statistical data showing a dramatic decline in dog attacks after adopting a pit bull ban in 2004. In 2000, there were 18 incidents involving attacks on people. From 2009 to 2012, there were two or fewer attacks each year with no attacks recorded in 2008, 2010, or 2012. In Council Bluffs, Iowa, which banned pit bulls in 2004, personal injuries from pit bulls fell from a high of 19 in 2005 to two in 2007 with no incidents in 2008 and 2009 in this city of more than 50,000 people.

A mandatory spay-neuter law was adopted in San Francisco, CA in 2013 after a 12-year-old boy was fatally mauled by his family’s dogs. There had been a pit bull law in the city since 2005. Since the new rules were enacted, there were 28 pit bull bites reported in three years versus 45 bites for the previous three years. In Aurora, CO, pit bull bites were reported down 73% since a pit bull ban was adopted in 2005.

DogsBite reported that attacks dropped dramatically in Springfield, MO since the city’s pit bull ban went into effect in 2006. In 2004 there were 13 vicious attacks and 18 in 2005. After the ban went into effect, there were eight attacks in 2007, none in 2008 and one each in 2009 and 2010 in this city with a population of more than 160,000. Omaha, Nebraska saw a 74% reduction in incidents after enacting a pit bull ordinance in 2008. The city recorded 121 attacks in 2008 and 31 in 2012.

In Sioux City, Iowa where a pit bull ban and vicious dog ordinances were enacted in 2008, vicious dog designations dropped from 33 in 2008 to 5 in 2014. There were 37 percent fewer dog bites in 2007 compared to 2013 in the populace of 82,000.

Lancaster, CA reported in 2010 that the 2009 mandatory spay and neuter law for rottweilers and pit bulls had very positive results. The mayor of the city said the city was overrun with gang members who routinely used pit bulls and other potentially vicious dogs “as tools of intimidation and violence.” Advocates say it’s a vicious cycle. Pit bulls attract owners who are likely to mistreat or neglect them. That treatment makes them aggressive, confirming a negative image of them.

In Salina, KS, the severity of bites has been way down with 24 reported in 2003 and only five since, with none in 2009 or 2010. The ordinance banning pit bulls there went into effect in 2004. Eighteen months after Saginaw MI cited five dangerous dog breeds in an ordinance—pit bulls, presa canarios, bull mastiffs, rottweilers and German shepherds—city officials reported a reduction in dog attacks. Dog attacks fell from 24 in 2009 to nine in 2011 when the law was enacted.

The Saginaw law is not breed specific, the dogs considered “dangerous” can change. Any dog that consistently appears in the top five listings of “most dangerous dogs,” as verified by data and records from Saginaw County, must be registered and conform to the rules for dangerous dogs.

Two Wisconsin cities—Antigo and Greenwood—and one village, Stratford, WI have had longstanding pit bull bans and report never having any problems with the canines. Antigo was proactive and passed its ordinance 20 years ago before any attack occurred rather than waiting to react afterward as many other cities have.

In October 2014, The Toronto Star, reported that a 2005 pit bull ban in Toronto, resulted in reported bites declining from 168 to 13. Portland, OR does not have an ordinance banning any dogs, but the subject was the topic of failed legislative proposals in 2009—one proposed requiring pit bull owners to carry $1 million in liability insurance. Portland officials have been tracking dog bites. According to The Oregonian/OregonLive from 2010 to 2014, investigation of 3,940 bite incidents in the city indicated 510 were attributed to pit bulls.

More than 100 bites were also reported for the following breeds: Labrador Retrievers (425); German Shepherds (278); Chihuahuas (231); Australian Shepherds (138); Australian Cattle Dogs (122); Rottweilers (117); Dachshunds (109) and Border Collies (106). The study did not indicate the severity of the bites.

In addition to the cities mentioned, DogsBite reported it had received information from Arkansas, Maryland, Pennsylvania and Washington concerning a reduction in dog bites after ordinances were passed.

Some Claim Bans Do Not Increase Public Safety

Pit bulls and seven other breeds were banned in Aurora, CO more than 10 years ago, but the number of total dog bites, including severe bites, did not decrease, according to the website, (BSL is breed specific legislation.) The bites had been primarily inflicted by non-banned dogs, the statistics showed. The data indicates that citizens of Aurora are no safer from dog bites today than they were before the breed ban was instituted and cites an Aurora City Council meeting report from June 27, 2008. (Meanwhile, says the city had a “significant” (73%) reduction in incidents since 2005. DogsBite quotes a March 4, 2014 article in the Aurora Sentinel.)

In Denver, CO, a ban has been in place since 1989 and has been touted as a success by city officials. However, stopbsl claims the results of the ban are unclear. Although there have been no fatal attacks by a pit bull and fewer pit bull bites, dog bites by all types of dogs have declined and bites by other types of dogs exceed the number of pit bull bites. More tragically, thousands of dogs who look like pit bulls have been killed by animal control facilities for no other reason than their appearance, the website claims.

Prince George’s County, MD instituted a pit bull ban in 1996. In 2003, a task force urged that the ban be rescinded and non-breed specific dangerous dog laws be instituted in their place. The task force indicated dog bites had decreased among all breeds at the same rate and the ban did not appear to have had any noticeable effect on public safety. The ban remains in effect today.

Reports from Other Countries

Several foreign jurisdictions have also come out against banning specific breeds of dogs to increase public safety, according to stopbsl. In The Netherlands, the government is looking into behavior-based legislation as dog bites have continued to rise despite a 15-year ban on pit bulls and no indication public safety has been ensured by the ban.

In Aragon, Spain, nine breeds of dogs and “dogs possessing the characteristics” of those breeds were named in a Dangerous Animals Act passed in 2000. A scientific study analyzing dog bites reported to the Aragon Health Department that there was no significant difference in the number of dog bites in Spain before or after the Dangerous Animals Act passed. The study also found that the most popular breeds, not named in the legislation, were responsible for the most bites while the targeted breeds accounted for a very small portion of bites. The scientists concluded there was no rational basis for singling out certain dogs.

In the United Kingdom, the Dangerous Dog Act band the American Pit Bull Terrier and three other breeds and their crossbreeds. Yet reports indicate that dog bites requiring hospital treatment have not decreased in the country. In 1999, there were 4,328 bites requiring treatment in hospitals compared to 6,118 bites in 2011—an increase of 41%.

An overall drop in the number of dog bites over more than three decades has been reported in Minneapolis, MN (an 86% reduction), New York City (90% reduction) and Baltimore, MD (91% reduction), according to the National Canine Research Council. Only a small number (5 to 10%) of all reported dog bites have been classified as serious (requiring suturing, surgery or hospitalization) in the past forty years, according to the Council.

Instead of breed bans, opponents of BSL laws claim dog owners need to be responsible for their animals by humanely controlling them. They say dog owners and parents need to be educated about dog safety and the importance of supervising their young children when interacting with dogs.

“There is no evidence cities or counties that have enacted breed bans or restrictions have had a greater reduction in the number of reported bites when compared to cities or counties without breed bans or restrictions,” the Council claims.

The Portland newspaper, The Oregonian, pointed out that a study which found aggressiveness in dogs was rooted at least partially in genetics also found that pit bulls were not the most aggressive dogs toward humans. Instead, much smaller dogs were found to be more aggressive including Dachshunds, Chihuahuas and Jack Russell terriers.

Why are Workers’ Compensation Claims Down in Ohio?

Shared by Frank Gallucci | Plevin & Gallucci

In recent years, the Ohio Bureau of Workers’ Compensation (BWC) and Industrial Commission (IC) have been touting a reduction in the number of workers’ compensation claims in the state. Indeed, the statistics included in BWC’s Annual Reports for fiscal years 2013 and 2016 reveal that BWC’s net allowed injuries were down 6% between fiscal year 2015 and fiscal year 2016, and down nearly 16% since 2011. The 2016 Annual Report attributes this decline to “[e]xpanded safety funding; [c]ontinued promotion of safe and healthy workplace; [and m]ore employers putting safety education resources to work.”

But based on our experience with Ohio’s workers’ compensation system and with helping injured Ohio workers get full and fair compensation for on-the-job injuries, we think that more is at play here than the BWC’s and IC’s management. Here are some less-rosy explanations for the reduction evidenced in BWC’s statistics that we think better explain them.

1. More Employers are Self-Insuring

In 2016, the General Assembly enacted HB 207, which amended O.R.C. § 4123.35 effective August 31, 2016. Prior to that amendment, employers could only self-insure if they had at least 500 employees. While the 500-employee threshold could be waived by BWC, it would only do so if the employer satisfied certain prerequisites, such as having a substantial employee count outside of Ohio or obtaining excess insurance. Among other changes, HB 207 eliminated the 500-employee threshold, meaning that more employers are now eligible to self-insure.

This has had a direct impact on BWC’s statistics, because self-insured companies are not required to report claims with no lost time to BWC. Lost-time claims are claims in which a worker misses eight or more calendar days due to a work-related injury. But self-insured employers have creative ways of artificially reducing the number of even the lost-time claims they must report to BWC. For instance, by paying injured workers to come to work and do nothing, they limit the number of days those workers take off for their work-related injuries.

2. The Workers’ Compensation Process is Tilted Against Workers

Consider the following three aspects of Ohio’s workers’ compensation process: First, BWC has delegated authority for coordinating care and making treatment decisions to managed care organizations (MCOs). These MCOs are selected by employers, and under their “coordination,” injured workers are often left waiting for treatment for up to six months, further exacerbating their health problems.

Second, when BWC requires an “independent” medical examination, BWC provides the doctors. But BWC has an interest in minimizing benefits, and the doctors it selects know this. Accordingly, BWC’s examinations commonly lead to reports that result in reduced benefits or flat-out denials. Even when a report favors the injured worker, BWC will often request an addendum rather than simply rely on the original report.

Finally, in cases of permanent total disability, the Supreme Court of Ohio has held that IC’s hearing officers need not accept the opinion of a vocational expert regarding an injured worker’s disability. Instead, the hearing officers, who are not vocational experts themselves, may ignore even the uncontroverted opinions of vocational experts and substitute their own analysis of relevant vocational factors, such as age and education.

3. Workers are Discouraged from Seeking Redress through the Workers’ Compensation System

All of the factors above combine to discourage workers from seeking redress for their injuries through Ohio’s workers’ compensation system. Injured workers we’ve spoken to have expressed a belief that the system will not help them. Their reluctance to file naturally contributes to the reduction in claims filed with BWC.

If that weren’t bad enough, we’ve also heard reports of employers pressuring injured workers to either not file workers’ compensation claims, or to report them as having occurred outside of work. Worse still, some employers have gone so far as to threaten workers’ jobs in an effort to create a culture of fear that further discourages workers from truthfully reporting their work-related injuries. While such retaliation would be illegal under Ohio law if carried out after a worker’s compensation claim is filed, no law prohibits employers from threatening retaliation before a claim is filed to prevent workers from filing a claim through intimidation. And, even after a claim is filed, an employer can defend retaliatory conduct using a decade-old Ohio Supreme Court case if it can find a way to frame its retaliation as somehow non-retaliatory.

The Bottom Line: Statistics Only Tell One Side of the Story

To summarize, we believe that there are factors at play in driving down BWC’s reported workers’ compensation claims other than the BWC’s efforts to enhance worker safety. The recent expansion of the right to self-insure, along with its lack of reporting requirements for certain claims, surely accounts for some of the reduction in reported claims. And the problems inherent in the workers’ compensation process, as well as employers’ efforts to intimidate workers to prevent claims from ever being filed, should also be considered.


Connected Car Technology: Advancing Awareness of Car Accident Hazards

Shared by Rittgers & Rittgers, Attorneys at Law

We all hear plenty about the driving distractions posed by electronic devices that increase the likelihood of car crashes and truck accidents. However, there is also a major upside to wireless technologies, and automotive industry experts predict that all new motor vehicles will eventually be equipped with "connected car" systems that will allow cars and trucks to communicate with each other and inform drivers about imminent hazards.

Using wireless transmitters that broadcast a car's position multiple times per second, researchers at the University of Michigan's Transportation Research Institute (UMTRI) have launched a study that will equip 3,000 cars and trucks with connected car technology. UMTRI officials point out two basic reasons why promoting enhanced motor vehicle safety is important: car and truck crashes are the number one cause of death for Americans between the ages of five and 34, and most accidents result from human error.

Vehicle-to-vehicle technologies can give drivers several precious seconds of extra warning when a vehicle ahead has had to slow or stop suddenly or veer to avoid an obstacle. Those extra seconds gained to implement a crash avoidance strategy will eventually save thousands of lives every year.

Driver demand is one clear inspiration behind the interest in connected car technology development, given that the vast majority of drivers who participated in a pilot program conducted by the National Highway Traffic Safety Administration (NHTSA) said that they would want the wireless positioning indicators in their own vehicles. For that reason, Ford, GM, Honda, Hyundai-Kia, Mercedes-Benz, Nissan, Toyota and Volkswagen have all pledged support for ongoing studies.

Minimizing Driver Error as a Cause of Car Accidents

Connected car technologies that help drivers become more aware of common dangers on the road will pay big dividends in future generations. Due to previous improvements in vehicle safety, from traction control systems to passenger restraints, traffic deaths in the U.S. have fallen to pre-1950 levels. But that still means more than 30,000 traffic fatalities every year, and a steep cost in terms of both finances and personal tragedy.

While accident causes as varied as drunk driving or defective tires and other parts mean that fatal motor vehicle accidents will never be eliminated, a future where they are significantly less common is an achievable dream much worth aspiring toward.


The Frightening Facts about Maternal Mortality

Shared by Leeseberg & Valentine

If you are like most expectant mothers, you probably spent most of your pregnancy excited and full of anticipation. There may have been some feelings of trepidation or worry mixed in, too, but they were likely concerns over the health of your unborn infant or new baby, rather than worries for your own well-being. Frighteningly, though, for many U.S. mothers, their own health — or rather, the lack of adequate health care for women during the maternal period — may be cause for the utmost concern.

Maternal mortality

Thankfully, after years of effort to prevent birth defects and pre-term birth, as well as improve outcomes for premature infants, the rate of newborn deaths is at an all-time low. In contrast are the ever-worsening statistics surrounding maternal mortality rates in the United States. Every year, up to 900 women die from pregnancy or causes directly related to childbirth, and a staggering 65,000 almost die.

This is especially upsetting given that the rest of the world seems to be addressing this problem and reducing the health risks to expectant mothers, while in the U.S., maternal deaths actually increased between 2000 and 2014. Consider these facts about the maternal period (the window the Centers for Disease Control defines as beginning at the start of a pregnancy and extending to one year after delivery):

  • American women are three times likelier to die than Canadian women during maternal period
  • American women are six times likelier to die than Scandinavian women during maternal period
  • CDC analysis indicates that up to 60 percent of maternal period deaths are preventable

The reasons for this higher risk of maternal death are many, but include:

  • An increase in the age at which women experience their first pregnancy
  • A greater prevalence of C-sections, which leads to more life-threatening complications
  • Lack of access to adequate health care for expectant mothers
  • Health care providers' confusion and lack of ability to recognize symptoms and treat obstetric emergencies

It appears that many health care providers focus so intently on fetal and infant health that the well-being of the mother pales in importance. Highly-trained specialists monitor newborn babies more closely than their mothers before, during and after birth, while the staff who treat mothers are sometimes unprepared or improperly trained. This, tragically, can prove catastrophic or even fatal.

Postpartum complications

If you are one of the unlucky mothers severely injured due to an OB-GYN's negligence or error, you do not have to suffer in silence. Neither should you have to bear the financial burden of the resultant medical expenses. An Ohio attorney with experience in pregnancy-related injuries will be able to offer guidance on pursuing compensation for your pain and suffering. OB-GYN malpractice cases are notoriously difficult to prove, so you will likely want to consider an attorney with a proven track record of success in cases of this nature.

Protecting your Child Against Bullying

Shared by the Rinehardt Law Firm

There are few parents whose lives haven’t been touched by bullying in some way:  either they have seen their children experience bullying behavior, they’ve seen their children’s friends fall victim to bullying, or they recall bullying behavior from when they were growing up themselves. 

Bullying can have a devastating impact not just on a child’s learning but also on his or her physical and mental health and well-being.  

What Type of Behavior Counts as Bullying? 

Ohio law defines bullying as any intentional act (physical, verbal, or written) that a student exhibits toward another student more than once that causes harm (physical or mental) and is severe or persistent enough to create an intimidating or threatening educational environment.  (R.C. 3313.666).  It’s a broad definition, and it includes more than physical attacks.  Leaving threatening notes in a student’s locker or posting abusive messages on social media websites is considered bullying in Ohio.

The School’s Role

In recent years, awareness about the problem of bullying in schools has grown, and both legislators and schools alike have taken steps to prevent it.  All public school districts (including charter schools) must establish policies prohibiting bullying.  They must also have:

  • a procedure in place to report bullying,
  • a requirement that school employees and volunteers report bullying,
  • a procedure for documenting and responding to bullying incidents,
  • a requirement that parents of students involved be notified and given copies of reports,
  • a discipline procedure for students guilty of bullying, and
  • a strategy to protect a victim of bullying.

Schools also must print their policy in the student handbook and send a statement summarizing the policy to parents each year.  Many school have also started incorporating the topic of bullying into school assemblies and classroom instruction.

Bullying Prevention as a Parent

As a parent, there are steps that you can take to prevent your child from being a victim of bullying.  The first and best thing you can do is to talk with your child and keep those lines of communication open throughout the school year.  Some specific things to discuss include:

  • making sure your student understands what bullying is, so he or she can recognize it right away if it happens. 
  • reviewing the school’s anti-bullying policy with your child, and reinforcing the importance of speaking up if he or she experiences bullying behavior.
  • building your child’s confidence through role-playing, giving your child concrete examples of how to respond to the bully by telling him or her to stop or by walking away.  
  • teaching your child about how to stay safe when confronted with bullying behavior, including staying in groups or staying nearby to a teacher or school volunteer.
  • encouraging your child to take part in group activities or clubs to help build confidence and make healthy friendships.

Steps to Take if Your Child is Bullied

Despite the efforts of legislators, school districts, and concerned parents, bullying still happens.  What can you do if you believe your child has been the victim of bullying?

  1. Look at your son or daughter’s student handbook and review the bullying policy carefully.
  2. Report the incident by calling the principal, and ask him or her to investigate.  Follow up with a written summary of your conversation and send it by mail or email.
  3. Keep notes of your conversations with school officials and keep copies of any letters and emails. 
  4. Check in with the principal again after a few days to make sure the school is following its policy.  Ask what steps are being taken to prevent future problems for your child. 
  5. If you don’t feel that the principal is taking your reports seriously, or if the school’s policy is not being followed appropriately, contact the superintendent or a member of the school board.  Share your documentation with him or her, and discuss what you believe could be done to protect your child.
  6. Continue to communicate with your child, and if the bullying has not stopped, report the continued behavior.
  7. You may also refer to or for more resources.

Your child has the right to a safe learning environment.  With parents, lawmakers, and schools working together against bullying, students can be feel supported, empowered, and protected against bullying.


Pining for Answers in Ohio Tree Law 

Shared by Lardiere McNair, LLC

Central Ohio is home to many beautiful and established neighborhoods that have been around for over a hundred years.  From Grandview to German Village to Upper Arlington to Clintonville and so on, old houses line the streets.  With old neighborhoods and houses, also comes matured trees.  Those trees have become ingrained in neighborhoods, and often extend from one property to the next.  Problems can arise between neighbors that have disagreements over the growth patterns of the tree.  The best practice to avoid problems is to communicate with your neighbors and resolve any potential conflict.  However, sometimes that isn’t enough.    

How is tree ownership determined in Ohio?  
A tree is owned by the property owner of the property upon which the tree grows.  Ohio law states that the property line extends upward toward the sky. The limbs of the tree extending onto another property do not extend ownership to that property owner.  However, a tree that is growing on the property line is deemed jointly owned by both neighbors.   

If a tree falls and damages property, who is responsible for the damage?  
Ohio law states that tree owners are not responsible for the damages caused by their trees, unless the tree owners are negligent.  Shoemaker v. Harris, 1998 Ohio App. LEXIS 6066.  Negligence arises out of whether not tree owner has actual knowledge of a weakened tree.  Hay v. Norwalk Lodge No. 730, BPOE, 92 Ohio App. 14, 3 (1951).  If the owner has knowledge of the weakened condition, and damage occurs, they are liable.  If the tree is not in a weakened or damaged condition, or if they reasonably do not have notice of the same, the owner is not liable for the damage.    
In summary, the party whose property is damaged bears the responsibility of the damages, unless the owner of the tree was negligent.  

Does the owner of the tree have a duty to inspect the tree?  
In urban areas like Central Ohio, a tree owner may also be liable for damage if they have constructive notice of a weekend tree.  These owners have a duty to inspect their trees regularly.  A tree owner in an urban area is treated as though that owner has actual knowledge of the results of an actual tree inspection.  If an inspection of a tree would not have given the tree owner knowledge of a weakened state, the tree owner is not liable for any damages resulting from a fall.  
In rural areas, the standard for inspection is lower.  Generally, property owners are not responsible for regular inspections of their trees, unless the condition of the tree is obviously weakened as stated above.  

What if my tree hangs over my neighbor’s property—can she or he make me trim it?    
You are not required to do so, as you are not liable for the damages unless the tree is weakened, and you reasonably should notice, as stated above.   

Can my neighbor trim my tree?  
Sure.  If the limbs or branches of your tree extend onto the neighbors’ property, she or he may remove those limbs that overhang such property.  
However, the neighbor needs to be cautious when cutting/trimming the tree.  The neighbor cannot kill or otherwise cripple the tree, and needs to exercise reasonable care.  Ohio Revised Code §901.51 do not permit injuring the vines, bushes, trees, or crops on the land of another.  This could result in treble damages (three times the value of the tree).    

Who can cut the limbs (or entire tree) of a jointly owned tree?  
Either neighbor may cut the branches that extend onto their own property, but must obtain permission from their neighbor before cutting additional branches, or the entire tree. 

Top Cellphone Apps that Combat Distracted Driving

Shared by Fields, Dehmlow & Vessels, LLC

Distracted driving is a well-known danger on the roads, but hundreds of drivers still continue to drive while using their mobile phone or engaging in other forms of distracted driving.

In response to the threat of these devices, several app developers have worked on creating new applications that combat distracted driving.

Today, there are numerous apps to choose from that will stop distracted driving for teens and adults.

The Purpose of Distracted Driving Apps

Smartphones are powerful. They keep individuals connected, allow business professionals to conduct business on the go, and allow children to maintain contact with their parents. However, text messaging remains a common issue. It takes just one text message to take a driver’s eyes and attention off the road for five seconds. These apps are designed to stop distracted driving by shutting down notifications, sending replies to text message senders that their recipient is occupied, and more.

Tips for Choosing the Right App

  1. Make sure the app is compatible with the phone’s operating software, such as iOS or Android.
  2. Look for an app that blocks messages and phone calls.
  3. Verify that the app offers notifications to parents so that they can monitor teen drivers.
  4. Check if the app tracks miles driven safely and if there are rewards for distraction-free driving.

What are the Best Distracted Driving Apps Available Today?

LifeSaver App – LifeSaver combines GPS monitoring with cell technology to dramatically reduce instances of distracted driving. They have rewards for safe driving, and when engaged, the app blocks a person from using their phone while driving. Also, it will notify parents that their teen driver has reached their destination and parents can use the “Driver Portal” to monitor teen driving habits. Parents are in control of the rewards offered to their teens. LifeSaver also works for commercial fleet managers that want to limit employee distractions.

AT&T DriveMode – AT&T released their DriveMode app for iOS and Android systems. It blocks texting and receiving phone calls while operating a vehicle. It can be set so that it automatically starts blocking when the vehicle is moving faster than 15 miles per hour. Also, parents can receive notifications if their teen tries to change a setting or deactivate the app. This app is very user-friendly.

TrueMotion – TrueMotion is free for iOS and Android system phones. It has unique features that other distracted driving apps do not, including a trip score that rates a person’s driving and moments that they might have been distracted.

Drive Beehive – This app connects drivers with sponsors who can set rewards for the specific number of miles safely driven.

Most safe driving apps are free or come with a nominal fee. Considering what they could do for a person — including saving a person’s life — paying a few dollars is always worth it to have an app that limits or stops distracted driving.

The Most Common Commercial Truck Accident Causes

Shared by Thomas Robenalt | The Robenalt Law Firm, Inc.

American Trucking Associations (ATA) has said, "The trucking industry is the lifeblood of the U.S. economy. Over 70% of all the freight tonnage moved in the U.S. goes on trucks. Without the industry and our truck drivers, the economy would come to a standstill." That’s true, but truck drivers are expected to follow certain rules, including the Federal Motor Carrier Safety Administration's (FMCSA) hours-of-service limits. These regulations were put in place because drowsiness affects reaction time. One FMCSA and National Highway Traffic Safety Administration (NHTSA) study of 963 crashes involving 1,123 large trucks that caused 249 deaths and 1,654 injuries revealed that 13 percent of commercial motor vehicle (CMV) drivers were fatigued when their truck accident occurred.

Other Common Truck Accident Causes

The FMCSA and NHTSA study coded accident factors as critical events, i.e., actions or events that made a collision unavoidable, and critical reasons, i.e., what caused the critical event. The following were the most common.

Critical events assigned to commercial trucks:

  • Running off the road or drifting into another lane (32 percent)
  • Losing control due to driving too fast for weather or road conditions, shifting cargo, or other reasons (29 percent)
  • Running into the rear end of another vehicle (22 percent)

Critical reason categories assigned to commercial trucks:

  • Non-Performance, meaning the driver fell asleep behind the wheel or was impaired due to a heart attack, seizure, or some other reason.
  • Recognition, meaning something in- or outside the truck distracted the driver.
  • Decision, meaning the truck driver misjudged how fast other vehicles were traveling or how wet the road was, or he/she was following other vehicles too closely.
  • Performance, meaning the driver panicked and oversteered.

Of course, determining the cause of a commercial truck accident is never that simple. Below, you'll see other factors that came into play.

  • Brake problems (41,000 trucks)
  • Unfamiliarity with the road (31,000 drivers)
  • Problems with the road itself (29,000 drivers)
  • Use of over-the-counter drugs, such as cold medicine (25,000 drivers)
  • Inadequate attention (20,000 drivers)
  • Pressure from the carrier to deliver the load quickly (16,000 drivers)
  • An illegal maneuver (13,000 drivers)
  • Inattention (12,000 drivers)
  • A distraction outside the truck (11,000 drivers)
  • A tire problem, such as a blowout (8,000 trucks)
  • Sickness (4,000 drivers)
  • A distraction inside the truck (3,000 drivers)
  • Use of illegal drugs (3,000 drivers)
  • Use of alcohol (1,000 drivers)

Ohio Commercial Truck Accident Statistics

Of the 302,307 accidents that occurred in Ohio between January and December 2015, more than 24,000 involved medium- to large-sized trucks. The NHTSA defines a large truck as one that weighs more than 10,000 pounds.

Florida Commercial Truck Accident Statistics

From Alachua to Zolfo Springs, Florida's Integrated Report Exchange System (FIRES) provides a county-by-county look at the number of commercial vehicle crashes that have occurred so far this year and in years 2011 through 2016. You can also learn the number of fatalities and injuries those accidents caused.


Study Looks at Low Reporting of Medical Errors Among Anesthesiologists

Shared by McKeen & Associates, PC

Medication errors are a common type of medical error observed in the health care industry. In many cases, medication errors are preventable. These errors can be traced back to physicians, of course, in the prescription of medications, but also to pharmacists who prepare and dispense the medication, nurses who administer the medication, and the health care administration responsible for supervising medication-related matters.

As we've noted before on this blog, health care providers are not always transparent when it comes to informing patients about medical errors. This is no different with medication errors. In fact, according to a recent study looking at medical error reporting error rates among anesthesiologists, medication errors may be significantly underreported by that section of the health care industry. 

According to the research, over a period of nine years, the incidence of self-reporting for medication errors was found to be 5.5 per 10,000 cases. The specific errors include things like prescribing the wrong medication and drug mix-ups or swaps. In terms of the types of medications, antibiotics and opioids were most commonly involved.

Interestingly, nearly 10 percent of medication errors cause at least temporary harm to the patient and can result in various adverse outcomes. According to the research, unplanned admission or escalation of care, unplanned intubation, and mechanical ventilation in post-anesthesia care unit are among the common outcomes in these cases. Failure to report medication errors could, of course, put patients at risk of harm beyond the medication error itself.

Premature Babies’ New Ray of Hope

Shared by The Eisen Law Firm

A Promising Future for Premature Babies     

Premature babies are at risk of developing a number of scary complications. When a baby is born too early, its organs are not fully developed and the baby is not ready for life outside of the safety of the womb. Therefore, it may be difficult for the baby to thrive. 

In some cases, it is hard to predict whether a baby will be born premature. However, there are certain risk factors that make premature birth more likely. Mothers who have had premature babies in the past, a pregnancy with multiples, smoking, drug use, certain infections, and preeclampsia all increase the risk of premature birth.

Premature babies are those that are born before 37 weeks of gestation. Premature babies commonly need to stay in the hospital a bit longer than babies that are born full-term. In addition, premature babies are at risk of suffering from long-term health problems. In the United States, about 10 percent of babies are born prematurely. 

New technology is promising for premature babies. In the past, doctors paid extremely close attention to the breathing of premature babies, hoping that by monitoring, supporting, and optimizing neonatal respiration, they would optimize cerebral blood flow. But new technology being developed in Europe offers the hope of measuring more directly blood flow and oxygenation in the brains of premature (and full term) babies. The technology uses optics, red and infrared lights that shine on a newborn’s head and allow doctors to “see” through body tissue without invasive tests or MRIs, which can themselves cause problems. 

Scientists using the technology at one hospital in Italy hope to have it available to other hospitals in three to five years. Clinical test results should be published in the next few months. Physicians are optimistic that the technology will help thousands of babies every year once it is widely available.

Oral Argument Preview: Proper Joinder for Respondeat Superior Liability in Medical Claim. Anthony Rush and Tammy Rush v. University of Cincinnati Physicians, Inc., and Thomas John Kunkel, M.D., and West Chester Medical Center et al.

Shared by Marianna Brown Bettman


On May 3, 2017, the Supreme Court of Ohio will hear oral argument in the case, Anthony Rush and Tammy Rush v. University of Cincinnati Physicians, Inc., and Thomas John Kunkel, M.D., and West Chester Medical Center et al., 2016-0636. At issue is whether an employee needs to be joined in a tort action in order to establish respondeat superior liability for the employer when the employer has been properly named and served. Justice DeWine has recused himself, since he sat on the court of appeals case.  Judge Arlene Singer of the Sixth District Court of Appeals has been assigned to sit for him on this appeal.

Case Background

On November 23, 2010, Anthony Rush (“Rush”) was admitted to West Chester Hospital after falling off a 30-foot ladder. Rush had multiple injuries, including several rib fractures, which prompted Dr. Caudell, the anesthesiologist on duty, to insert an epidural catheter to release a continuous drip of pain medications into Rush’s spinal canal. Over the next few days, several other anesthesiologists, all members of the University of Cincinnati Physicians group, —Doctors Chen, Khalil, Wojciechowski, and Kunkel—oversaw Rush’s pain management care.

Dr. Kunkel first treated Rush on November 26, 2010. At this point, Rush was still suffering from severe and ongoing pain, to which Dr. Kunkel responded by increasing the rate of anesthesia infusion. Rush experienced some pain relief, but by the following evening, he began to feel numb in his legs and abdomen. In response, Nurse Mueller called an anesthesiologist about Rush’s worsening condition. While Nurse Mueller’s record of this call does not indicate with whom she spoke, a separate telephone order instructing her to reduce the epidural rate was also included in the medical records, and bore the name and electronic signature of Dr. Kunkel. Dr. Kunkel, however, maintains that the he did not receive this call, as he would have pursued a different course of treatment had he been the one called. Dr. Kunkel has suggested that Nurse Mueller likely confused Dr. Kunkel with the on-call anesthesiologist, Dr. Khalil, and that Dr. Khalil likely signed the order for Dr. Kunkel, which the doctors routinely did for each other.

By early morning on November 28, 2010, Mr. Rush was experiencing increased numbness in both legs and was incontinent of urine. Nurse Culp called Dr. Kunkel, who then instructed her to turn off the epidural and provide him with an update in two hours. Nurse Culp complied and reported some improvement by 6:30 a.m. By 9:00 a.m., Nurse Mueller was back on duty, and called Dr. Kunkel to report improvement in Mr. Rush’s right leg, but persistent numbness in his left leg. At 12:30 p.m., Dr. Kunkel arrived to check on Rush and found him unable to move his left leg, and his right leg was very weak. Concerned with the possibility of an epidural hematoma, Dr. Kunkel ordered an MRI and transferred Rush to University Hospital for evaluation. Rush is now paralyzed, and in a wheelchair.

On April 9, 2012, Rush and his wife, Tammy Rush, filed a medical malpractice action against several defendants who were responsible for his medical care. By the time the case proceeded to trial, however, all the defendants except Dr. Kunkel and UC Physicians were dismissed. At trial, the Rushes and their experts contended that the placement of the epidural catheter caused bleeding that resulted in Rush’s spinal cord being compressed, and therefore Dr. Kunkel was negligent in failing to identify and correct this problem. The experts for Dr. Kunkel and UC Physicians disagreed, asserting that Rush’s paralysis was a result of his original injuries and that Dr. Kunkel’s treatment was not negligent. At trial, the defendants also moved for a partial directed verdict in favor of UC Physicians, on the grounds that UC Physicians could not be held vicariously liable for any physician not specifically named in the suit. The trial court granted this directed verdict, finding that UC Physicians could be liable only for the conduct of Dr. Kunkel.  The jury ultimately found in favor of the defendants.

On appeal, the First District affirmed the trial court’s decision to grant the partial directed verdict on the issue of vicarious liability. In an opinion authored by then-Judge DeWine and joined by Judges Mock and Stautberg, the First District relied heavily on the Ohio Supreme Court’s decision in Wuerth to conclude that UC Physicians could not be held vicariously liable for the conduct of an unnamed physician. Judge Stautberg also concurred separately to state that while he agreed that the Rushes should be allowed to pursue the claims against UC Physicians that were not tied specifically to Dr. Kunkel’s alleged negligence,  precedent constrained him from such an outcome.

Votes to Accept the Case

Yes: Justices French, Pfeifer, O’Neill and Lanzinger

No: Chief Justice O’Connor and Justices O’Donnell and Kennedy.


Continue reading blog post here:


Do I have 3 Days to Cancel the Transaction in Ohio?

Shared by Doucet & Associates Co., L.P.A.

Depending on the type of transaction, a consumer can cancel within three days of the initial transaction and receive a full refund.  Although most transactions are not protected by a statute with a three-day cancellation right, many consumer transactions involving contracts for specific goods or services are protected.

Prepaid Entertainment Contracts:
The PECA requires servicers to provide specific documents and cancellation rights to consumers when they are signing a contract. Servicers must tell consumers orally about a right to cancel the contract and give two printed copies of the cancellation rights along with the agreement to the consumer. Gym memberships, dance studios, dating services, massage companies and spas, martial arts facilities, sport clubs, weight reduction centers, and other services requiring regular payments are examples of prepaid entertainment contracts.

Truth In Lending Act:
The TILA protects consumers involved in contracts with borrowed funds with creditors and lenders. Essentially the TILA forces loan companies and credit card companies to provide all information regarding interest rates, other fees, due dates, payments, and cancellation rights before a consumer signs a contract. The most common borrowed funds and spending habits protected by TILA include auto loans, home loans, mortgage refinances, credit cards, and debit cards.

Home Solicitation Sales Act:
The HSSA in Ohio protects consumer transactions that take place outside a company’s regular place of business and usually inside a buyer’s home. The vender is required to tell the consumer their business name, business address, and give a copy of any contracts verifying any purchases to the consumer when conducting a home solicitation sale. This contract should include the buyers signature, the date the agreement was made, and two copies of the buyers right to cancel. The vender must also orally notify the buyer of their three day right to cancel and refund all payments within ten business days if the consumer does choose to cancel.

Ohio Lemon Laws
The Ohio Lemon Laws protect consumers buying brand new automobiles and dealing with auto repairs. New vehicles are protected under the lemon laws for the first 12 months the consumer owns the vehicle or for the first 18,000 miles the vehicle is driven. Whichever comes first ends the consumer’s protection period according to the lemon laws, although a consumer may sue years later as long as the issue was raised during this period.

During this time the consumer has to ask the manufacturer to fix the problem before turning it into a legal matter. If the problem is considered a manufacturer error and cannot be fixed during a reasonable amount of time, then the consumer might have the possibility to receive a refund or replacement. A consumer choosing a full refund is entitled to collect the entire amount paid on the new vehicle, transportation costs, charges for manufacturer services, registration fees, license fees, warranty charges and other fees.

Used Cars
Most used vehicles are sold “as is” and are not protected by the Ohio Lemon Laws. Therefore, consumers do not have a three day right to cancel the transaction in Ohio. When a vehicle is sold “as is”, it means the vehicle is being sold in its current condition. You, as the new owner, are accepting all responsibilities for known and unknown problems with the vehicle after the transaction has been made. Dealerships selling used cars “as is” must clearly state and tell consumers about the “as is” policy before they agree to buy the car and explain any warranties the vehicle may still be protected by.

Trucking Company Liability for a Truck Accident

Shared by David A. Kulwicki | Mishkind Kulwicki Law Co., L.P.A.

Semi-truck accident investigations are more detailed and involved than routine car accident cases.  When a semi-truck causes a crash, there are numerous documents from the trucking company that must be reviewed to determine the root cause of the accident.  A thorough investigation can reveal facts that enhance the value of the claim and may support an award of punitive damages.  For purposes of this article, the term “truck” will be used to refer to any large interstate cargo truck such as a semi-truck, semi-trailer, 18-wheeler, tractor-trailer and box truck.

Trucking Company Liability

As a result of State and Federal regulations, interstate trucking companies are required to maintain certain documentation that other commercial carriers are not required to maintain.  Federal Motor Carrier Safety Regulations (FMCSRs) require the following documentation:

  • Logs to show that the driver complied with maximum driving time restrictions.
  • Records showing that the driver holds a valid CDL license.
  • Records showing the driver has had a bi-annual physical exam.
  • Vehicle maintenance and inspection records.
  • Drug and alcohol testing records.
  • The driver’s personnel file.

The FMCSRs set minimum standards for record-keeping.  Some trucking companies maintain additional important data, such as GPS records of drivers’ routes and “black box” devices that record information about the driver’s actions before a crash.

As one truck accident attorney recently wrote, “a shortage of qualified drivers and fierce competitive forces motivate carriers and drivers to take short-cuts and violate the regulations.”  As a result of dangerous trucking industry practices, trucks and buses account for over 4,000 traffic fatalities and 126,000 injuries each year.  The personal injury cases frequently involve serious injury such as brain injury, amputation, disfigurement or other injury.

Under Ohio law, a trucking company is automatically liable for the negligent acts of its employee-drivers.  The company’s records are not needed to prove fault on the part of the company independent of the driver’s negligence.  However, the records can be useful to show that the company had systematically violated trucking regulations and thereby put the public at unnecessary risk.  Records can also be used to extend liability to shippers and brokers.

Medical Device Recalls: Are you at Risk?

Shared by Leeseberg & Valentine

Undergoing surgery for the implantation of a medical device is frightening, no matter how much the doctors and surgeons have assured that you will be safe. Coming through surgery with no harmful side effects or additional damage is a relief, but those feelings of worry and concern can come back if you learn that the device implanted in your body is under recall.

Receiving notice of a medical device recall is enough to raise concerns over the likelihood that you may experience a serious medical episode. You want this issue resolved effectively and fast, but where should you turn? By seeking the guidance of an Ohio attorney experienced in medical malpractice and medical device recalls, you can know your options and have a better chance of securing the recovery you deserve.

What happens next?

If your medical device is under recall, the company that manufactured the product must decide if a correction or a complete overhaul is necessary. In some cases, a simple correction is all that is necessary to fix the problem, but for more serious cases, the device has to be taken out completely. Either of these scenarios involves anesthesia, possible surgery, doctor visits and recovery time.

When unexpected failure, unforeseen side effects or other risks are made known to manufacturers, doctors must contact patients who have the defective device and discuss the risk of either leaving it in, repairing it or removing it from the patient's body completely. The doctor must decide if any of the following steps are necessary:

  • Inspection of the device
  • Additional surgery
  • Replacement of the device
  • Adjusting the settings on the device
  • Monitoring patient for health issues

A medical device recall can be overwhelming for a patient, but with help, you can protect your rights and seek recovery for any additional medical costs and undue pain and suffering you will endure.

Who is liable for your pain and suffering?

Not every medical device recall is grounds for a civil claim, but it is possible that you have a valid claim to compensation. If your doctor knew about the recall before your surgery, did not inform you of the risks or did not inform you of the recall in a timely manner, you may have a case. A thorough evaluation of your situation will determine if your care provider or the manufacturer is liable for the additional procedures, pain and recovery time you had to endure.




About the Blog
OAJ Blog Central showcases informative blog posts from law firms and trial attorneys throughout Ohio. 

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Recent Posts:
• Wrong Dose of Anticoagulation and Stroke
Local Dog Ordinances Lowering the Number of Dog Bites
Why are Workers' Compensation Claims Down in Ohio?
Connected Car Technology: Advancing Awareness of Car Accidents Hazards
•  The Frightening Facts about Maternal Mortality

Keywords: Wrong Dose, AnticoagulationDog Bites, Dog Ordinances, Workers’ Compensation Claims, Car TechnologyMaternal MortalityBullyingOhio Tree LawDistracted Driving, Phone AppsCommercial TruckingAnesthesiologists, Medical Error, Premature Babies, Oral Argument, Respondent Superior Liability, Truth in Lending Act, Ohio Lemon Laws, Consumer, Prepaid Entertainment ContractsLiability, Truck Accident, Medical Device Recalls


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