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Advocates Circle Firms

Arthur Law Firm Co., LPA.

 

Barkan Meizlish
Handelman Goodin DeRose
Wentz, LLP

 

Bordas & Bordas, PLLC

 

Brian, Zwick, Marchisio & Associates

 

Elk & Elk

 

Geiser, Bowman & McLafferty, LLC

 

The Gervelis Law Firm

 

Kisling Nestico & Redick

 

Kitrick, Lewis & Harris Co.,. LPA

 

Leizerman & Associates, LLC

 

Lamkin, Van Eman, Trimble & Dougherty, LLC

 

Meyer Wilson Co., LPA

 

Murray & Murray Co., LPA

 

Nurenberg, Paris, Heller & McCarthy Co., LPA

 

O'Connor Acciani & Levy, LPA

 

Rittgers & Rittgers

 

Plevin & Gallucci Co., LPA

 

Rourke & Blumenthal

 

Slater & Zurz, LLP

 

Robert J. Wagoner, Co., LLC

 

Tzangas Plakas Mannos Ltd.

 

Young and McCarthy LLP

 


 

                       

 

OAJ BLOG CENTRAL

NTSB and Others Call for Mandatory Crash Avoidance Tech on Trucks

Shared by Young & McCarthy LLP

www.truckcrashvictimhelp.com/blog


While some trucking companies in Ohio have installed crash avoidance technology in their fleets, many have not. These businesses should know that some groups are pushing for the mandating of such technology on all commercial trucks. This action is being supported by several members of Congress.

The National Transportation Safety Board has been the most prominent advocate of this step. On at least 10 occasions since the 1990s, the NTSB has recommended that all heavy trucks be required to have forward crash avoidance and mitigation systems. However, the National Highway Traffic Safety Administration has reportedly failed to act on the recommendations.

The NHTSA has issued a written statement saying that it studied early automatic emergency braking technology and that it has proceeded to research next-generation versions of the technology. This research is projected to wrap up in 18 to 24 months and could help NHTSA make informed decisions in the future.

Crash avoidance systems can prevent more than seven out of 10 rear-end collisions, according to the trucking companies that have incorporated the technology. When wrecks do occur, the technology is able to mitigate the severity of the injuries and vehicle damage. However, lobbying groups for the trucking industry maintain that implementing such technology should be voluntary.

Even with the latest safety tech, truckers are responsible for keeping their vehicles under control at all times. When they fail to do so and cause truck accidents, victims will have the grounds for personal injury claims. Legal counsel could help an accident victim obtain compensation for medical bills, lost wages and pain and suffering.


Merit Decision: Football Widow Allowed to Proceed with Husband’s Alleged CTE Claim. Schmitz v. Natl. Collegiate Athletic Ass’n.

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“Schmitz’s experience of disorientation as to time and place following head impacts establishes that he was, or at least should have been, aware that he had sustained head injuries. But head injuries, including concussions, are an inherent part of football…They do not inherently suggest the existence of actionable wrongdoing.”

Justice French, majority opinion

On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn.Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.

Case Background

During the 1970’s, when Steven Schmitz played college football for Appellant Notre Dame, he received repetitive concussive and subconcussive brain impacts. In December of 2012, Schmitz was diagnosed at the Cleveland Clinic with CTE, a degenerative brain disease.  By 2014, at age 58, Schmitz was also diagnosed with severe memory loss, cognitive decline, dementia, and Alzheimer’s disease, which he claimed were caused or exacerbated by the repetitive head impacts from his college football days. Schmitz died in February of 2015.

Shortly before he died, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the National Collegiate Athletic Association (“NCAA”)(Collectively, the “Football Defendants”). In January of 2015, they filed an amended complaint, alleging claims of negligence, constructive fraud, and fraudulent concealment against the Football Defendants. Schmitz and his wife claimed the Football Defendants failed to notify, educate and protect Schmitz from the long-term dangers of repetitive head impacts. After his death, Schmitz’s estate was substituted as a plaintiff. The Estate and Yvette individually, and as fiduciary of Schmitz’s estate, are the appellees in this appeal.

The Football Defendants moved to dismiss the claims under Civ. R. 12(B)(6) as time barred; the NCAA also moved to dismiss for failure to state a claim on which relief could be granted.  The trial court granted the motions to dismiss without opinion. In a unanimous opinion authored by Judge Boyle, and joined by Judges Jones and Celebrezze, the Eighth District Court of Appeals affirmed in part and reversed in part. It affirmed the dismissal of contract claims against the Football Defendants and the constructive fraud claim against the NCAA. But it reversed the trial court’s dismissal of the other claims, characterizing the amended complaint as alleging a “latent injury” that “did not manifest until decades after Schmitz stopped playing football.”

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

R.C. 2305.10(A) (“an action for bodily injury . . . shall be brought within two years after the cause of action accrues.”)

R.C. 2305.09(C) (An action for fraud “shall be brought within four years after the cause thereof accrued.”)

O’Brien v. Univ. Community Tenants Union Inc., 42 Ohio St.2d 242 (1975) (A complaint cannot be dismissed under Civ.R. 12(B)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.)

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (To justify dismissal of an action as untimely under Civ.R.12(B)(6), an amended complaint must conclusively show on its face that the claims are time-barred.)

O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84 (1983) (“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant.”) (syllabus)

Allenius v. Thomas, 42 Ohio St. 3d 131, 133, 538 N.E.2d 93 (1989) (Under the cognizable event doctrine, a claimant does not need to “be aware of the full extent of the injury.”)

Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6 (1994) (Extending O’Stricker’s rule of accrual to an individual exposure to toxic gas, which manifested itself six years later.)

Norgard v. Brush Wellman, Inc.95 Ohio St.3d 165 (2002) (Discovery of physical injury alone is insufficient to start the statute of limitations running if at that time there is no indication of tortious conduct giving rise to a legal claim.)

Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) (In order for the discovery rule to apply, there must be (1) discovery of the injury and (2) discovery of the wrongful conduct. Since this plaintiff knew the perpetrator and that he had been injured, his claims were time-barred.)

Football Defendants’ Proposed Propositions of Law

Number 1

A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time‐barred claim.

Number 2

Plaintiffs’ fraudulent‐concealment and constructive fraud claims are subject to R.C. 2305.10(A)’s two‐year statute of limitations.

Merit Decision

Executive Summary

The discovery rule applies to all the bodily injury claims. The fraud claims were also considered bodily injury claims, thus also subject to the two year statute of limitations.On the fraud claims, the Football Defendants’ second proposed proposition of law was accepted.

Accepting all allegations in the amended complaint as true, and drawing all inferences in favor of appellees, as is required for a Civ.R. 12(B)(6) motion, the amended complaint does not conclusively show the claims are time-barred, and therefore the amended complaint should not have been dismissed. So the Football Defendants first proposed proposition of law is rejected. But the court did throw a Hail-Mary pass here—the court’s opinion suggests that as discovery progresses, the Football Defendants may be able to prove that Schmitz knew or should have known about his neurological conditions and their connection to the defendants’ conduct before October of 2012, which would mean the lawsuit was untimely.  We’ll see.

The Negligence Claims

Positions of the Parties

During the extremely well argued oral argument in this case, the Football Defendants insisted Schmitz’s claims accrued by 1978, the end of his college football-playing years, and were thus time-barred  long before 2014 when the suit was filled. The appellees argued that this was a latent-injury case, and as such, the claims accrued in 2014 when Schmitz was informed by competent medical authority that he had CTE.

Analysis

For me, a retired torts professor, Justice French’s opinion was like a stroll down the good old time-of-discovery days of torts.

 

Click here to continue reading post.


A Provoked Dog Bite Doesn't Constitute an Injury Claim

Shared by Sandel Law Firm

www.sandellaw.com/blog


When a dog bites someone - be it a neighbor, family member or stranger - an injury claim is only valid if the animal was unprovoked. Otherwise, there may not be retributions for the incident.

If you live near a dog that may be dangerous, follow these tips to keep from making any action that could be considered "provoking" the animal to bite.

Define provoke

An Ohio dog owner is liable for any harm a dog causes - whether it be purposeful or not - if the injured person was not stimulating or deliberately upsetting the dog, trespassing or breaking any other criminal law on the dog owner's property.

Avoid provoking a dog

While petting a passerby's dog may seem innocent to you, doing so could be considering provoking the animal to bite.

To keep your intentions from resulting in a dog bite, here are a couple of preventive measures you should follow when you are near someone else's animal:

  • Never pet or reach out to pet an animal without the pet owner's permission
  • If an owner permits you to pet their dog, hold out your hand and allow the animal to sniff and approach you first
  • Do not approach an animal you are not familiar with it and no one is around
  • If an unfamiliar dog approaches you, don't run - remain still, keep calm and avoid direct eye contact with the animal
  • Turn slightly away from an unfamiliar animal and slowly back away or instruct the animal to "Go home"
  • Do not throw objects or make loud noises if you are near an unfamiliar animal
  • Avoid attempting to interact with a dog who is eating, sleeping or nursing puppies

Injuries associated with dog bites

A dog bite can be extremely painful, but in some circumstances, the bite may only be of the suffering. If the animal has not been vaccinated for rabies, it's bite, saliva or scratches can transmit the virus. Bites can also spread other germs that may result in infection.

If you are bitten by a dog, it's important to call local authorities to the scene and seek medical attention as soon as possible.

If a dog attacks unprovoked

Even if a friendly dog (unprovoked) jumps on you and causes you to fall or hurt yourself, the owner is liable for your injuries. In cases when a dog attacks you or otherwise causes you harm, report the incident and seek medical attention.


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Wrongful Death Case Filed After Amputee Resident Fell

Shared by Michael A. Hill | Eadie Hill Trial Lawyers

www.eadiehill.com


According to an article in the Kokomo Perspective, a nursing home in Indiana is being held accountable for leaving a woman, who had one of her legs amputated, alone in the shower. A negligent error that led to the woman’s death.

The article reports that a wrongful death suit has been filed against Aperion Care Kokomo by the family of Sicely Daulton. The article reports that:

In the suit, it’s claimed that Daulton, missing a leg from an amputation, was left unattended standing in a shower, resulting in a fall that broke the elderly woman’s leg. And it’s claimed in the suit that Aperion attempted to conceal the error that resulted in the woman breaking her leg.According to the complaint, Daulton’s fall occurred on March 1, 2017. After being left standing alone in the shower, Daulton fell and was found with “her left leg bent at the knee pressed up against the wall and the calf of the left leg resting on the thigh of her right upper leg.” An Aperion staff member called 911 following the incident and admitted to the operator that it was an unwitnessed fall.

Nursing Home’s Lies Lead to Death

The article claims that there is proof that the fall was indeed witnessed:

The nursing home staff “in a blatant attempt to conceal the truth and cover up their neglect, the nursing staff later falsely documented the nursing record to suggest that Ms. Daulton’s fall was in act witnessed and that the fall was caused by Ms. Daulton letting go of a wheelchair.”

Jeff Powless, the attorney representing Daulton’s family, said the alleged coverup was found after he obtained a recording of the 911 call made after Daulton’s fall.

“What’s particularly concerning about this case, and we see this far too often, is that the medical records, upon close examination and when we look into the facts of the case and do additional investigation, often do not reflect the reality of what happened,” said Powless. “I think it’s unfortunate that far too many nursing homes spend their time trying to cover up what happened rather than correct it. Here in this case, but for the fact that we obtained the 911 recording, critical information about what happened in this case wouldn’t have ever come to light if we’d simply relied upon the medical records as documented by the facility staff.”

When nursing homes are dishonest in an investigation of an injury, it can lead to complications, even death. Things get a lot more complicated when the resident dies in the ensuing days, weeks, or months, because their death may or may not be related.  Proving that connection requires medical expert to review and determine the death was caused—at least in part—by the negligence-caused injuries.

If the nursing home injures a resident and the resident dies because the resident was sick, weak, or otherwise unable to recover from the trauma or injury, that is the nursing home’s fault.  They do not get a pass because the person they injury was not stronger or healthier than someone else.

This Was Not The Resident’s First Fall

According to the article, the resident actually had a history of falls. In fact, in two years the resident had fallen more than 15 times. The article reports that:

It’s also alleged in the suit that Daulton’s fall in the shower wasn’t her first. According to the suit, during her residency at the nursing home, Daulton experienced at least 16 falls between Jan. 1, 2015, and March 3, 2017.

The primary claim of the suit is that the “nursing home staff knew Ms. Daulton was at high risk for falls, yet they failed to provide adequate supervision and assistance devices to prevent accidents such as falls.”

 

You can read the full article referenced above here. 


How to get Young Drivers to take Driving Safety Seriously

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

www.cubbon.com/blog


You see plenty of young drivers on the roads every day. These teenagers learned enough to pass their driving tests, but you worry that they simply approached them like any school test: They crammed until they had the information "memorized" for a few days, passed the tests and then forgot most of what they had learned.

In particular, you worry about distracted driving. You know how dangerous it is. You know how often teens do it. And you also know that, despite being told about the dangers many times during their training, teens just do not take this risk seriously. That's why they keep on doing it. How can adults change this dangerous mindset?

Show them the reality

One potential option is to push teens closer to the reality by showing them what the results of a distracted driving accident look like. Often, they think of warnings as rules that they want to bend or break when no one is looking. They do not think of them as something designed to really keep them safe.

An educational program combated this by taking them to a hospital and having them tour a trauma center. They also got to listen to testimony from someone who had survived traumatic injuries. When shown the reality, they understood why the rules existed, and that made them more likely to follow those rules.

Help them connect

Meeting with the survivor was especially impactful, as it helped the teens connect with someone who had really been through a terrible event. They could see how it had changed that person's life forever. Seeing it first-hand humanized things more than simply watching a movie or reading a textbook. It brought the reality home for them before they got into serious accidents, rather than after.

Does it work?

The big question is whether a program like this actually works. According to the students who went through the program, it does.

For instance, before the program, around 64 percent of students said they probably would not use their phones to make calls while behind the wheel. Afterward, that number jumped to 82 percent. Similarly, around 69 percent claimed they would not text and drive at the beginning, but that percentage leapt all the way to 92 percent at the end.

Could the increase have come from the fact that students knew what the program's goal was and how adults expected them to answer? Perhaps. But the changes do show that it had an impact, which hopefully carries over and influences the way those teens actually drive.


Why Don’t Surgical Centers Have to Report the Deaths of Their Patients?

Shared by Crandall & Pera Law, LLC

www.injuryverdicts.com/blog


There are certain types of surgical procedures that don’t require long hospitals stays. Biopsies and colonoscopies are a good example, because they’re same-day procedures that don’t require an overnight stay; tonsillectomies, X-Rays, and cataract removals are also same day procedures. As a result, they are often performed at stand-alone surgery centers – not hospitals. These centers often cost less money, and are more conveniently located than hospitals, making them popular alternatives.

Right now, there are more than 5600 surgical centers located across the U.S. – far more of them than there are hospitals. A USA TODAY/Kaiser Health News investigation in March uncovered more than 260 patient deaths at these centers in the last 5 years.

One of those deaths was a 12-year-old boy. CBS Evening News tells his story: https://youtu.be/s0dfoUMzEOo

The latest investigation by USA TODAY has found that 17 states have “no mandate to report patient deaths after surgery center care. So no facility oversight authority has examined whether the deaths were a statistical anomaly or cause for alarm.” Furthermore:

[These] surgery centers operate under such an uneven mix of rules across U.S. states that fatalities or serious injuries can result in no warning to government officials, much less to potential patients. The gaps in oversight enable centers hit with federal regulators’ toughest sanctions to keep operating, according to interviews, a review of hundreds of pages of court filings and government records obtained under open records laws. No rule stops a doctor exiled by a hospital for misconduct from opening a surgery center down the street. (emphasis ours)

A doctor who has had his or her privileges revoked from a hospital due to misconduct can simply open up a surgical center of his or her own, no questions asked. And that doctor doesn’t have to tell anyone, it seems.

When a patient dies in a hospital, that hospital may be required by law to report that death. In some cases, hospitals may be required to report a death to the Centers for Medicare and Medicaid Services, to the county Medical Examiner (if there is a need for an autopsy), or to the state health department. Not all deaths need scrutiny, but the unexpected ones do – like a 12-year-old boy dying from a tonsillectomy, or anyone dying after a colonoscopy, which is one of the safest procedures a person can have.

Incomplete reports are not limited to deaths

Understand, too, that this incomplete reporting is not limited to deaths. Per the USA TODAY investigation, “Medicare allows surgery centers to report data for as few as half of just their Medicare patients, ignoring most patients under age 65 who do not yet qualify for Medicare. In practice, that has allowed surgery centers to report as many hospital transfers as they choose – unless more than half of their patients leave by ambulance.”

What this means is, when you do your research into surgical centers, you might see that the Kentucky Surgery Center in Lexington, or the Ohio Surgery Center in Columbus, shows that fewer than half their patients have been transferred to hospitals because of complications. What you don’t see is any explanation for why the numbers present the way they do. In a 2013 study published by the National Institutes of Health (NIH), researchers looked at patient’s “acute care needs after care” at ambulatory surgical centers. They reviewed records (July 2008 through September 2009) of 3,821,670 surgical patients who were treated at 1,295 ambulatory surgery centers in three states, to determine:

  • How many were transferred to hospitals at the time of their discharge from the centers; and
  • How many people needed hospital-based or Emergency Room care within 7 days of that discharge.

They concluded that “Among adult patients undergoing ambulatory surgery center care, hospital transfer at discharge is a rare event. In contrast, the hospital-based, acute care rate is nearly 30-fold higher, varies across centers, and may be a more meaningful measure for discriminating quality.”

In short, despite low levels of transfers to hospitals, the number of adult patients who sought additional care from the E.R. or through hospital admittance was about 30 times higher than those who did not.

Perhaps most telling, however, is that the transfer rates at the surgical centers across all three states varied very little. Because of this, researchers found, the data “may offer little in a patient’s or payer’s ability to determine which ambulatory surgery centers are providing ‘better’ care.”

What can be done to protect surgical center patients?

The NIH study’s authors recommend penalties and rewards to incentivize centers to do better. Medicare can issue sanctions, too, for facilities with serious safety lapses. But instead, in July of 2018, Medicare proposed ending its collection of transfer data altogether – after all, transfer rates vary so little from facility to facility, and from state to state.

That means it is up to us, as patients and advocates, to force changes for the better. One of the reasons Medicare does not always send officials to investigate problems at surgical centers is that they rely on consumer complaints. Therefore, we must take it upon ourselves to report problems we, or our loved ones, have at these centers. This is especially true for cases concerning minors, as Medicare collects no data on that at all.

The other thing we must do is contact our local and state representatives, and demand that more oversight and regulation be put in place for surgical centers. The owners and operators of these facilities must be held accountable for the mistakes they make, and for their medical negligence. If Medicare and the facilities won’t do it, then we need to ensure that other authorities or governing bodies will. 


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What Should a Cyclist do When Hit by a Careless Driver?

Shared by Knabe Law Firm Co. LPA

www.klfohio.com/blog


More Ohioan’s are cycling on our roads for pleasure, health, charity, and commuting. Cyclists cannot be confined to the sidewalk and have an absolute right to ride on the road, except for closed access highways. Many articles exist about what to do if an unsafe driver hits a cyclist. We have broken it down with an easy to remember acronym – “P.H.O.N.E.” 

WHAT SHOULD A CYCLIST SHOULD DO WHEN HIT BY A CARELESS DRIVER?

Remember this handy acronym: “P.H.O.N.E.”!

  1. P — Police: call the police and insist on a report, no matter what!
  2. H — Healthcare: seek immediate medical treatment for injuries.
  3. O — Observation: get the driver’s contact and insurance info, and names of all witnesses, or make sure the police obtain this vital information.
  4. N — Notify: call an experienced cyclist AND bike accident injury attorney BEFORE you talk to a liability adjuster. The adjusters are pros for the insurance agencies – hire a pro for yourself!
  5. E — Evidence: don’t let the at-fault party move their car or your bicycle. In fact, if the car has left turned into your lane and violated your right of way, take a picture of it in your lane before the driver or the police move it. Keep all damaged property including bike, cracked helmet, ripped clothing and damaged accessories.

What’s On Their Minds: Are Damages to Reputational Harm Capped in Defamation Cases? Ann Wayt v. DHSC, LLC.

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


On August 1, 2018, the Supreme Court of Ohio heard oral argument in the case Ann Wayt v. DHSC, LLC, 2017-1548. At issue is whether R.C. 2315.18 caps non-economic compensatory damages in defamation actions.

Case Background
In 1987, Ann Wayt (“Wayt”) began working as a nurse at DHSC, LLC, which does business as Affinity Medical Center (“Affinity”). Her employment evaluations had always been excellent. In 2012, Wayt, along with several other nurses, began a campaign to unionize the nurses at Affinity. Wayt was viewed by some as the leader of the unionization effort. Ultimately, the effort to unionize was successful, although the issue of unionization was divisive at the hospital. Almost immediately after the unionization went into effect, Wayt was accused of misconduct and falsifying hospital records to reflect patient care she did not administer. The hospital conducted an investigation and suspended Wayt for falsification of hospital documents. During the subsequent investigation, Wayt’s supervisors recommended that she be terminated.

After Wayt’s termination, Affinity’s Chief Nursing Officer sent a complaint about Wayt to the Ohio Board of Nursing (“OBN”) so that the OBN could decide whether to suspend or revoke Wayt’s nursing license. Affinity supplied the OBN with allegedly selective pieces of information and allegedly left out documents supporting Wayt’s performance. As a result, Wayt had little success in her subsequent job search. Wayt applied to fifty-seven openings, received an interview from two of them, and was not hired.

The National Nurses Organization Committee filed a charge with the National Labor Relations Board (“NLRB”) alleging Affinity engaged in unfair labor practices in terminating Wayt. The NLRB found for Wayt. The NLRB’s ruling was affirmed by the U.S. District Court for the Northern District of Ohio. Affinity was ordered to reinstate Wayt in her previous job with the same pay and benefits.

After returning to work at Affinity, Wayt filed a civil complaint against Affinity for, in part, defamation of her character. Claims other than defamation were later dismissed.  The punitive damages portion of the trial was bifurcated. The jury found for Wayt on her defamation claim, and awarded her $800,000 in noneconomic compensatory damages and $750,000 in punitive damages. Affinity moved that the damages be limited to $250,000 and $500,000 respectively in accordance with the damages caps set forth in R.C. 2315.18 and R.C. 2315.21. The trial court overruled Affinity’s motion and found that R.C. 2315.18 does not apply to defamation claims.

On appeal, the Fifth District, in a unanimous opinion written by Judge Delaney, joined by Judges Gwin and Wise, affirmed the decision of the lower court. On the damages cap issue, the Fifth District substantially incorporated by reference the trial court’s finding and analysis that the damages cap does not apply to defamation claims. Affinity now appeals this aspect of the ruling of the Fifth District.

Read the oral argument preview of this case here.

Key Precedent
Ohio Constitution Article I, Section 16 (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation shall have remedy by due course of law . . .)

R.C. 2315.18 (Compensatory Damages in Tort Actions

(A)(4) “Noneconomic loss” is categorized as any nonpecuniary harm to a person or property. Statute lists specific types of recoverable damages.

(A)(7) “Tort action” means a civil action for damages for injury or loss to person or property. “Tort action” includes a civil action upon a product liability claim or an asbestos claim. “Tort action” does not include a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim or a civil action for damages for a breach of contract or another agreement between persons.)                                                                          (B)(2) (specifies caps to be applied in tort actions for compensatory noneconomic damages.)

R.C. 2315.21 (Punitive or Exemplary Damages)                                                                                (D)(2)(a) Punitive damages shall not be awarded in excess of two times the compensatory damages awarded to the plaintiff.)

Smith v. Buck119 Ohio St. 101 (1928) (The term “injury to person” is commonly used and generally afforded its common usage which extends to reputational injuries unless additional language is present to indicate otherwise.)

Lawyer’s Coop. Pub. Co. v. Muething, 65 Ohio St.3d 273 (1992) (A negligence claim asserting emotional distress, pain and suffering, humiliation, and loss of reputation is a claim for personal injuries and is governed by the statute of limitations set forth in R.C. 2305.10. Syllabus)

Arbino v. Johnson & Johnson, 2007-Ohio-6948 (Ohio’s statutory scheme concerning caps on compensatory and punitive damages—R.C. 2315.18 and 2315.21—are facially constitutional.)

Nadra v. Mbah2008-Ohio-3918 (“Bodily injury” covers all actions whose purpose is to recover for an injury to the person whether based in tort, contract, or statute.)

Simpkins v. Grace Brethren Church of Del. Ohio, 2016-Ohio-8118 (Upholding caps on catastrophic nonphysical noneconomic damages as applied to minors who are victims of sexual assault, arising out of negligent hiring and supervision by church.)

At Oral Argument

Arguing Counsel
Michael O. Fawaz, Howard & Howard, Attorneys, Royal Oak Michigan, Admitted Pro Hac Vice, for Appellant Affinity Medical Center.

Brian L. Zimmerman, B Zimmerman Law, Canton, for Appellee Ann Wayt. Sitting with Zimmerman at counsel table, but not arguing, was retired Justice Andy Douglas.

Affinity’s Argument
Based on the unambiguous language of R.C. 2315.18, the statutory cap on noneconomic damages clearly applies to the tort of defamation. Since the statute is unambiguous it need not be interpreted; only applied.

The statute defines a tort action as “a civil action for damages for injury or loss to person or property.” “Civil action” is a broad term. Recognizing that, the legislature tried to limit the scope of a tort action by excluding certain claims from that definition, such as medical malpractice claims, and even breach of contract claims, so those claims would not get swept up in this very broad definition. But defamation is not excluded from this definition. Since 1928, in Smith v Buck, this court has characterized slander and defamation as a form of personal injury. The exact language from that decision was, “the security of a person’s good name and reputation is within his personal rights as a citizen, and slander thereof is an injury to his person.”

Defamation is unquestionably a tort action. The damages available for defamation are the exact intangible noneconomic losses defined by statute—mental anguish, suffering, and humiliation. While Ms. Wayt submitted evidence that she had applied for jobs and could not get them, there was no lost wage claim presented. The damages sought were for noneconomic loss.

Despite the language in the Ohio Constitution segregating out injury to reputation, this court has characterized loss of reputation as another form of injury to a person. It may not be bodily injury, which is narrower, and requires physical harm, but injury to reputation is still a non-physical injury to the person. It is fair to assume that the legislature is aware of this court’s precedent. It could certainly have legislated around that. It could have excluded reputation specifically. It was clearly the intent of the legislature to cap noneconomic damages and the only exception it provided for was for catastrophic permanent physical injuries. There was no other exception for nonphysical injuries even when they are catastrophic. Simpkins is the perfect example of that.

The court should reject Ms. Wayt’s argument that that this statute only applies to physical bodily injury, or claims sounding in negligence only. The statute does not distinguish between negligent and intentional conduct.  Both kinds of conduct cause bodily injury. The statute caps any injury or loss to person or property unless it is a catastrophic permanent injury.

The other issue-whether there were separate occurrences of defamation—was waived in this case. If the court does consider it, there was only a single occurrence. All the separate events came together and caused a single indivisible injury.

This case should be reversed and remanded.

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Drowsy Driving is a Serious Risk

Shared by Levy Law Offices 

www.levylawoffices.com/blog


Drowsy driving is a big problem on roadways in Ohio and throughout the United States. It's dangerous because it results in several different risky behaviors, including reduced attentiveness, slow reaction times and poor judgment. Sleepiness or fatigue on the road is caused by untreated sleep disorders, overwork, medications and alcohol. The National Highway Traffic Safety Administration estimates that in 2013, there were 72,000 crashes, 44,000 injuries and 800 deaths caused by drowsy driving.

People who don't get enough sleep are most obviously affected by drowsy driving, but there are several other categories of individuals who are at high risk for engaging in the behavior. These include commercial drivers, shift workers and those who use medications. According to reports, 1 in 25 people reported falling asleep behind the wheel at least once in a 30-day period. People who got less than six hours of sleep per day or snored were more likely to experience drowsiness while driving.

Besides getting enough sleep, there are a few other things people can do to mitigate the risk of driving while drowsy. If a driver can't prevent him or herself from falling asleep, he or she should pull over and take a nap. The signs of sleepiness include frequent yawning and blinking, reduced short-term memory, missing an exit, drifting from a lane and hitting a rumble strip on the side of the road.

Victims of motor vehicle accidents that were caused by the drowsiness of a third party may have the right to compensation for their medical bills, rehabilitation costs, lost wages and other pain and suffering. Receiving compensation often requires representation from an attorney who focuses on personal injury cases. A lawyer may be able to help a victim negotiate a settlement out of court or file a lawsuit and go to trial.


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#MeToo includes #AllOfUs

Shared by NachtLaw PC 

www.nachtlaw.com/blog


The #MeToo movement started in 2017 with a group of actresses coming forward about the misdeeds of movie producer Harvey Weinstein. Most observers would agree that one of the most positive results has been that the long-existing issue of sexual harassment and discrimination in the workplace against women is now high in the public consciousness. It's important to acknowledge, however, that women alone don't make up the victim population.

No one can say for certain how many men are in the same boat. Officials with the U.S. Equal Employment Opportunity Commission who track complaints say many male victims don't file complaints out of uncertainty or fear. But one recent CNBC survey found that 10 percent of men have reported being victims of improper conduct. At the same time, the EEOC says nearly one in every five complaints received come from men.

What sexual harassment of men looks like

Because of the #MeToo movement and precedent set by earlier brave women, many have at least some idea of what sexual harassment in the workplace can look like. The picture is not quite as clear when it comes to men. When allegations surface, it's not pretty, as the following examples show.

  • A worker at a Virginia nuclear manufacturing facility tells how he was targeted by a male co-worker over three years, including one incident in which the co-worker unzipped his pants and thrust his crotch toward the victim's face as he took a drink of water from a fountain.
  • A male ironworker in Louisiana alleged he was targeted by his supervisor because he didn't live up to the boss's ideal of what it means to be a "rough ironworker." The boss purportedly called the worker "princess," and often made lewd comments and gestures to him.

By legal standards, those stories represent unacceptable behavior, and anyone who suspects they're a victim of possible harassment or discrimination should learn more about their rights and options.

Consulting experienced legal counsel is one way to do that. Other steps include:

  • Commit to speaking up. Bad conduct won't stop if the person responsible for it doesn't know it's offensive. By saying something, the offender is on notice and should be aware that further action is possible.
  • Learn and follow company procedures for handling such issues. Many employers have policies to fight harassment because they know they are required by law to maintain a work environment free of harassment. Follow them to the letter. If policy calls for you to report infractions to a supervisor and that person is the offender, report to his or her superior.
  • Bring in regulators. If following company policy doesn't yield results, check with an attorney about what avenues exist under federal laws and the laws of your state. In Michigan, this might involve reaching out to the Department of Civil Rights.
  • Consider filing suit. This can occur in federal court if the EEOC issues a notice of your right to sue. Your claim of injury doesn't have to be physical in nature. Emotional distress is injury, too.

How to Prove an Injury Happened at Work

Shared by Heller, Maas, Moro & Magill Co., L.P.A.

www.ohiodisabilitylaw.com/blog


Workers’ compensation benefits can be a lifeline for employees injured on the job, particularly if they are temporarily or permanently unable to return to work. Most employers offer some form of workers’ comp insurance, but getting access to the benefits you deserve involves a lengthy and at times complicated claims process. One of the most important things to prove when you file your claim is that the injury happened while you were on the job. Without this crucial point, your employer’s workers’ compensation insurer will not have to pay you a dime.

Employers and their insurers are out to protect their bottom line, and this can cause them to dispute your account of what happened, especially if they think they can prove your injury did not occur at work. At Heller, Maas, Moro & Magill Co., L.P.A., we fight for the compensation our clients need and deserve for their workplace injuries. With that in mind, here are some tips for proving that your injury happened at work.

Evidence to Help Prove Your Injury Is Work-Related

Evidence will be a vital part of your workers’ compensation claim. There are several pieces of evidence you can gather immediately after your workplace accident. Here are some of the types of evidence you can use to prove that your injury was work-related:

  • Pictures of the scene and your injuries

  • Witness reports

  • Time reports showing that you were clocked in at the time of the accident

  • Maintenance reports of equipment involved in the accident

  • Documentation from your doctor

  • Any records of your or anyone else’s formal report of the accident to the employer

With this type of evidence in hand, you will be well on your way to proving that the accident occurred on the job. However, your employer and its workers’ compensation insurer may still try to undermine your account of what happened to avoid paying you the compensation you need. So it is crucial to have an experienced workers’ compensation lawyer on your side to protect your rights throughout the process.

Defenses Your Employer Might Use to Say Your Injury Isn’t Work-Related

Many employers and insurance companies simply don’t want to shell out for your injuries. Your employer might decide to throw a great amount of energy and resources into discrediting you. Here are some of the defenses an employer or insurance company might try to use to say your injury wasn’t work-related:

  • You may have been present at the facility, but you were not working at the time.

  • You were using equipment in a mischievous or unauthorized way instead of following protocol.

  • You were drunk or on drugs at the time of the accident.

  • You waited too long to report the alleged accident.

  • Your injury was a pre-existing condition.

There are ways to combat these and other defenses, but you will need the evidence on your side. Employers and their insurers have a huge amount of resources at their disposal, and they will likely conduct their own investigation to try to discredit your account. An experienced workers’ compensation lawyer can help you put your evidence together into a strong case and fight back against bogus defenses from your employer.

What to Do If You Are Injured on the Job

Any time you are injured, your body’s fight-or-flight instinct is likely to kick in, and everything may seem like it’s in a haze. However, if you can remember to take these steps, you will have a better chance of successfully pursuing a workers’ compensation claim for your injuries:

  1. Call for help. Unless you work in a totally isolated environment, you should be able to get other employees on the scene to help you. Your coworkers can call 911 if you are unable to, and they will be able to serve as witnesses later.

  2. Call 911, if necessary. If your injuries are severe and you need to go to the emergency room, call 911. It is better to be safe than sorry, and if you leave serious injuries untreated when you need emergency medical attention, your situation will only get worse. If your workplace has a nurse or doctor on duty, you may go to them. Even if you don’t require emergency medical treatment, you should get checked out by a doctor as soon as possible.

  3. Gather evidence. If you are not immediately rushed to the hospital, you should start gathering evidence right away. Take pictures of your injuries and of any equipment involved, along with the rest of the scene. Ask your coworkers to record witness statements.

  4. Report the accident to your employer. You should formally report the accident to your employer as soon as possible. If you fail to do so, they might use that against you in arguing that the accident did not take place on the job.

  5. Follow all medical instructions.Be sure to attend all follow-up doctor’s appointments and follow their instructions, such as taking medication and limiting physical activity. This will show that you are taking your injury and your treatment seriously.

  6. Save all documentation and receipts. Keep all paperwork related to your injury, including medical bills, accident reports, etc. All this will be helpful in building your claim. 


The Scooter Trend - Convenient and Fun Until Someone Gets Hurt

Shared by 

www.rinehardtlawfirm.com/blog


If you live in or near Columbus, you’ve probably seen the newly installed electric scooters for rent.  Two competing companies, Bird and Lime (owned by Uber), expanded to central Ohio in mid-July introducing motorized scooters to Ohio State’s campus and several Columbus neighborhoods, including downtown. 

Bird Rides has an app that allows customers to locate and rent the scooters for $1.00 plus 15 cents per minute.  Lime will use the Uber app to locate and rent its scooters.  The scooters are picked up by company employees and charged at night.  They are not meant to be used after sunset.

Proponents tout the scooters as the next logical step in the transportation revolution, they are environmentally friendly, and make it easy to zip around the city or campus.  Opponents complain that the scooters are an annoying fad among hipsters and tourists, who weave in and out of traffic putting themselves and others at risk.

One thing is certain, accidents will happen.

Some of the most common accidents include:

  • Pedestrians tripping over parked scooters: Scooter users often leave the scooters lying around on pathways and sidewalks.  When left carelessly discarded, the scooter presents a tripping hazard.
  • Automobile or truck drivers hitting riders: The scooters travel at a speed of only 15 mph, making it extremely dangerous to ride one on the roadways with cars and trucks traveling at much higher rates of speed. In addition, the scooters are quite small and even less visible than motorcycles or bicycles. 
  • Riders striking a pedestrian on the sidewalk: To date, the scooters are permitted on sidewalks and other pathways presenting the opposite problem of being on the roadway. At speeds of up to 15 mph, scooter riders are traveling much faster than a pedestrian causing crashes and injuries. 
  • Scooter defects: Scooters have been known to malfunction and suddenly stop working causing rider ejection or falls. Also, if a rider brakes hard, the front wheel can lock up throwing the rider off the scooter.
  • Children riding the electric scooters and people riding tandem
  • Road hazards: Scooter riders may crash by hitting or swerving around potholes, road debris, gravel or uneven surfaces. Scooter riders may also crash trying to avoid pedestrians, dogs, other scooter riders or cars. Sometimes scooter riders crash after being chased by unleashed dogs.
  • Riding recklessly, while impaired, or intoxicated.

Until state and local legislatures catch up with the unique challenges presented by electric scooters, for now, there is no licensing, permitting or helmet requirements under Ohio law, and the scooters are permitted on both streets and sidewalks in Columbus.  Each city or township will make its own determination governing the operation of the scooters. 


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When Employer's Go Too Far - Disability-Related Inquiries And Medical Examinations Under The Americans With Disabilities Act

Shared by Nilges Draher LLC

www.ohlaborlaw.com/blog


The Americans with Disabilities Act ("ADA") limits an employer's ability to make disability-related inquiries or require medical examinations. During employment, employers "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." Any employee can challenge a disability-related inquiry or medical examination that is not "job-related and consistent with business necessity."

The Equal Employment Opportunity Commission ("EEOC") has defined a "disability-related inquiry" as "a question (or series of questions) that is likely to elicit information about a disability." This may include asking an employee about the severity of a disability, asking an employee to provide medical documentation regarding a disability, asking about prior workers' compensation history, or asking about prescription medications, for example.

A "medical examination" is a "procedure or test that seeks information about an individual's physical or mental impairments or health." A number of factors should be considered when assessing whether a medical examination is improper under the ADA. These include whether the test is administered and/or interpreted by a health care professional, whether the test is designed to reveal an impairment or physical or mental health, whether the text is normally given in a medical setting, and whether medical equipment is used, for example.

In general, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." The 6th Circuit has held that this entails "dual requirements that there be evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job, and that any examination be limited to determining an employee's ability to perform essential job functions."

Individuals who have suffered from workplace injuries can be particularly vulnerable to these types of inquiries or examinations. Pursuant to the EEOC, employers are permitted to ask questions or require examinations that are limited to the specific workplace injury and its impact on the employee only when necessary for the employer to determine the employee's eligibility for workers' compensation benefits.

Nilges Draher recently defeated an employer's motion for summary judgment on this very issue. In Angel v. Bilfinger Weston, Inc. an Ohio federal court found there to be a genuine issue of material fact as to whether an employer was allowed to require an employee to submit to a medical examination, after the employer had previously required the employee to attend various doctors' appointments after a workplace injury. This is an unprecedented decision in the 6th Circuit.


Couple Granted $1.36 Million after Hospital Negligence Verdict

Shared by Tittle & Perlmuter

tittlelawfirm.com/blog


Lindsey Setzer was just 23 years old when she went to St. Clare Hospital due to a urinary tract infection (UTI) and ongoing pain on her right side. Setzer and her husband, Michael, were 14 weeks pregnant and had already nicknamed their unborn child “Baby Setzer”.

When she arrived at the hospital, she informed the nurses of her kidney stone history and proceeded to have an ultrasound performed which revealed several more had formed. Her heart rate was above 140 beats per minute (BMP) and she was suffering from fever and nausea when the doctor released her without any antibiotics or prescription.

The next day, Setzer woke up with a severe fever and rapid heartbeat that led to her trip to the emergency room at Mercy Hospital. While in the emergency room, doctors diagnosed her with sepsis caused by the untreated UTI and began immediate treatment. Her diagnosis meant she would spend seven days in the intensive care unit (ICU) and would fully recover, but the same could not be said for “Baby Setzer”.

Searching for Justice

In 2016, Lindsey and Michael reached a confidential settlement against the doctor who treated her, Dr. Joseph Herrmann, but decided to file a second lawsuit against the hospital itself in 2018.

In search of justice, The Setzer’s and their lawyers began preparing for what would be a five-day, intensive trial in St. Louis, Missouri. Six years after Setzer’s traumatizing experience, justice was served and 9 out of 12 jurors found the hospital to be negligent. The jury determined that Setzer’s unborn child did not survive due to the hospital approving the discharge of a pregnant woman suffering from both kidney stones and a UTI as well as high fevers and nausea.

Kidney stones are known to have the ability to affect a fetus and complicate birth. If an expecting mother has consistent UTI’s and other symptoms of kidney stones, it’s important to see a doctor right away in order to avoid premature labor. Because the hospital voluntarily released Setzer with these symptoms, it led to the eventual loss of her fetus due to complications from her untreated condition.

As a result of Setzer’s overwhelming sense of loss for her child, she went on to become an obstetrics nurse for Mercy Hospital. She takes pride in helping expecting women stay healthy and informed and hopes to ensure her situation doesn’t happen to anyone else.


Attorney Encourages Abuse Victims of Former OSU Doctor to Come Forward

Shared by Smith Law Office

www.sestriallaw.com/blog


Attorney Scott Elliot Smith of Smith Law Officeis representing victims of Dr. Richard Strauss, the physician formerly employed by Ohio State University who is alleged to have engaged in sexual misconduct of male students during medical exams and procedures.

"Many students who were abused by Dr. Strauss weren't sure what to do about it," said Smith, who is currently representing some of Strauss's victims. "They may have felt ashamed or embarrassed, or at the time were afraid of the consequences if they reported the abuse. But they deserve to know their rights and they should know their legal options."

Strauss worked for the university from 1978 to 1998, serving as doctor for many of the school's sports teams, and also saw patients at the school's health centers.

In April, the school announced an investigation into alleged sexual misconduct by Strauss, noting the state attorney general had hired an independent investigator to review the allegations.

Multiple students have already come forward with claims of sexual misconduct by Strauss, describing sexual abuse, fondling and other inappropriate touching. Many did report Strauss' behavior to coaches and administrators at Ohio State at the time, but no action was taken, Smith said. Strauss took his own life in 2005.

Smith stressed that any victims who come forward can expect privacy and confidentiality. "We are fully aware of how difficult these conversations can be," he said. "We protect the identity of victims from public disclosure. Our main interest is in helping them get justice."


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About the Blog
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