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Young and McCarthy LLP

 


 

                     

OAJ BLOG CENTRAL

New Webcast—Market Your Law Firm to Millennial Consumers

Shared by FindLaw 

Click here to register for Webcast


On November 7th FindLaw will host an exclusive webcast for OAJ and NCAJ members on millennial legal consumers and their particular way of researching and solving legal needs. Millennials make legal hiring decisions quite differently than their parents and grandparents did. Fortunately, law firms don’t need to toss out their current playbook to reach this generation.

Millennials were raised on the internet, were early adopters of social media and started reading blogs when they were young. Traditional marketing approaches might not appeal to this more tech savvy generation. More than 40 percent of millennials believe tweets and Facebook posts from attorneys are important. On top of that, they trust blogs to do their legal research at twice the rate as the average legal consumer. These two areas alone set them apart from their baby boomer or Gen X counterparts.

Join us for a webcast on November 7th where you’ll learn more about the factors that influence millennial buying decisions and how to tailor your digital marketing efforts to their unique needs.

This webcast will cover:

Where millennials differ from the average legal consumer, the channels millennials prefer and marketing to the millennial legal consumer.


Road Check: Are Big Trucks Safe?

Shared by Michael Leizerman | Leizerman & Associates LLC

blog.truckaccidents.com


This past June, certified commercial motor vehicle inspectors in the U.S. and Canada joined together in the Commercial Vehicle Safety Alliance’s (CVSA) 30th annual International Roadcheck. During a three day period covering June 6-8, enforcement personnel conducted over 62,000 safety inspections (over 54,000 in the U.S. alone) of both vehicles and drivers of large trucks and buses at weigh stations, inspection sites and along the roadways of North America.

The results? Not too encouraging, considering that almost one in four tractor-trailer rigs on the roads today shouldn’t be—specifically in that they were unable to pass Level I inspection standards as set forth by the CVSA. These parameters include but aren’t limited to:

  • Vehicle’s brake system
  • Cargo securement
  • Operation of all vehicle lights
  • Steering mechanism
  • Structural integrity of vehicle frame
  • Tire and tread condition

So how is it that 23 percent of all vehicles inspected were unable to pass these basics—causing them to be removed from service on the spot? These are not mere “warning” offenses, but major infractions that violate the legal requirements for operating a large commercial vehicle. Elevating the level of incredulousness is that this long-running event is well-known and anticipated by the industry; the CVSA actually promoted the event with specific dates as early as March—yet, many of the vehicles inspected were found to not be compliant.

It is interesting to note that this event coincides with a crucial point in time for the industry, one where previous practices might get relegated to the past for good as carriers look to technology to keep their trucks moving. In response, some drivers are incensed to the point of planning a protest in Washington D.C. during the first week of October, fighting for the ratification of a trucker’s “bill of rights.”

Few deny that there are major issues within the industry that are “broken” and need fixing—but, so far, it’s obvious that the carriers, drivers and regulators all have differing agendas. While a viable solution could be just around the bend, the CVSA road check event reminds us that, in the meantime, we need to improve the safety of our highways.


Every Motorcycle Owner Should have Uninsured And Underinsured Insurance Coverage

Shared by Rittgers & Rittgers, Attorneys at Law

www.rittgers.com/blog


A recent Ohio motorcycle case highlights the importance of your motorcycle insurance coverage 

Uninsured motorist coverage (UM) protects you in the event you are injured when the at-fault driver does not have any insurance. Underinsured motorist coverage (UIM) protects you when the at-fault driver does not have enough insurance to cover the full extent of your injuries. The cost for obtaining UM / UIM insurance is minimal and might save your future. For motorcyclists this type of insurance coverage is a no-brainer.

According to the Insurance Research Council roughly 14% of Ohio drivers do not carry any liability insurance. A large portion of the remaining cars on the road carry only minimum coverage. In Ohio the state minimum coverage for liability insurance is only $25,000. At Rittgers & Rittgers the damages in the majority of the motorcycle crash cases we handle are frequently hundreds of thousands of dollars and sometimes millions of dollars. Medical bills, alone, almost always exceed the $25,000 state minimum.

Typically, an insurance company will require a driver to carry at least as much liability insurance as UM / UIM insurance.

Recently we represented a longtime motorcycle rider who had a $250,000 liability policy on her motorcycle but no UM / UIM coverage. Unfortunately the at-fault driver only had the state minimum coverage which was well short of the actual damages in the case.

There is no reason for a motorcyclist to carry a large liability policy without a large UM / UIM policy. Most motorcycle crashes occur between passenger vehicles and motorcycles. The odds are extremely low that a motorcyclist will cause $250,000 worth of injuries in a crash with a passenger vehicle. It is, however, highly likely that the motorcyclist will have serious injuries in the event of a car crash which is why the UM / UIM policy should be high.

The monthly cost to add UM / UIM coverage is relatively low. All drivers, especially motorcycle riders, should have high underinsured insurance to protect themselves and their family from financial ruin in the event of a car crash.


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Merit Decision: Auto Accident Victim Cannot Recover from Strip Club for Injuries Caused by Intoxicated Dancer

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“Nothing in our precedents dictates that the word “person” be limited to patrons.”

Justice DeWine, majority opinion

“I am unable to join a majority decision that absolves from liability a liquor-permit holder who encourages the dancers in its club to drink alcohol in order to reap enormous profits from the drinks purchased for the dancers, does not monitor the intoxication level of the dancers, and then sends them out on the roads without ensuring that they are fit to drive.”

Justice O’Neill, dissent

On September 6, 2017, the Supreme Court of Ohio handed down a merit decision in Johnson v. Montgomery Slip Opinion No. 2017-Ohio-7445. In an opinion written by Justice DeWine, joined in full by Chief Justice O’Connor and Justices Kennedy and Fischer, the Court held that a liquor-permit holder is not liable for the off-premises injuries caused by one of its workers unless the permit holder, here a strip club, served that worker knowing she was intoxicated, which the record did not support in this case. Justices O’Donnell and French concurred in judgment only. Justice O’Neill dissented. The case was argued April 6, 2017, at Morgan High School in Morgan County as part of the court’s off-site program.

Case Background

The Living Room is a strip club in the Dayton area, operated by Thirty-Eight Thirty. Michael C. Ferraro is the sole officer and shareholder of Thirty-Eight Thirty. Dancers who work at the Living Room are encouraged to drink to lessen their inhibitions, and most did so. Customers are encouraged to buy drinks for the dancers, and the club charged more for those drinks. 95% of the club’s profits came from the sale of alcohol, and 30-40% of those sales were to customers for the dancers. Montgomery’s working arrangement with the club was this: under contract with Thirty-Eight Thirty, she paid $30 a night to lease space to dance. In return, she kept all tips. She received no wages or compensation from the club.

On the night in question, Montgomery left work in the early morning hours after admittedly ingesting cocaine that day, and drinking on the job. She drove herself home and no one tried to stop her. Montgomery struck a car in which appellant Nicole Johnson was a passenger. Johnson was severely injured.

Johnson filed a common law negligence action against Montgomery, Ferraro, and Thirty-Eight Thirty, (for simplicity, “The Living Room” or “the Club”) and a Dram Shop Act violation claim against Ferraro and the Living Room. A default judgment was taken against Montgomery. The claims against Ferraro and the Living Room were tried to a jury. At the end of Johnson’s case, a magistrate directed a verdict in favor of Ferraro and the Living Room on the Dram Shop claims, but allowed the common-law negligence claims to go to the jury. The jury returned a verdict of over 2.8 million dollars in favor of Johnson on the negligence claim. The trial judge adopted the magistrate’s decision and entered judgment on the jury’s verdict. Both sides appealed.

The issue pertinent here is the appeal by the Living Room and Ferraro on the common law negligence claims. They argued that there is no cause of action outside the Dram Shop Act in Ohio for negligently furnishing a tortfeasor intoxicating drinks, and the trial court should not have instructed the jury on common-law negligence. In a unanimous opinion, the Second District agreed, finding that the Dram Shop Act provided the exclusive cause of action against the Living Room, and the trial court should not have let the common-law negligence claim go the jury. The judgment against the Living Room was reversed, which mooted the claim of Ferraro’s personal liability.

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

Key Precedent

R.C. 4399.18 (Ohio’s Dram Shop Act) (Liability for acts of intoxicated person)

A person has a cause of action against a permit holder…for personal injury… caused by the negligent actions of an intoxicated person occurring off the premises… only when…

(A)(1) (the permit holder or an employee of the establishment “knowingly sold an intoxicating beverage” to a “noticeably intoxicated person.”)

(B) The person’s intoxication proximately caused the personal injury, death, or property damage.

R.C. 4301.01(A)(2) (Defining “sale” or “sell” as the “exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by any means or devices whatever . ..”)

State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996) (An unambiguous statute shall be applied as written.)

Sharp v. Union Carbide Corp., 38 Ohio St.3d 69, 70 (1988) (Undefined statutory terms are given their “plain, everyday meaning.”)

Klever v. Canton Sachsenheim, Inc., 86 Ohio St.3d 419 (1999) (Ohio historically refused to recognize claims against tavern owners for any injuries caused by their intoxicated patrons. Ohio’s Dram Shop Act embodies that general common law rule.)

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997) (Plain error review as applied to civil cases must be limited to “extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings.”)

Click here to continue reading.


Sorry. Not Sorry.

Shared by The Eisen Law Firm

www.malpracticeohio.com/blog


“Sorry. It’s my fault. Totally. My mistake, I wasn’t paying attention” confessed the middle-aged man after he ran a red light and hit my car. I was relieved that he accepted responsibility because the damage was in the thousands of dollars. But then he got a lawyer paid for by his insurance company, and he changed his story. His new story was that it was all my fault. I wasn’t too worried because I knew what he said at the scene of the collision, and I was prepared to testify to it in court.

Boy, was I wrong. I came to learn that his confession of fault, his admission that he wasn’t paying attention, would be inadmissible in court. That’s right, even if I had a busload of witnesses to that confession, we couldn’t tell a jury about it! He could just change his story, and no one on the jury would find out.

Whaaaatttt? That doesn’t even pass the smell test for fairness.

Well, the good news is that I made up that story. And, in fact, if you get into an accident and someone admits fault, you can tell the jury.

The bad news is that if your doctor screws up and confesses, he or she can in fact hide that confession from a jury. That is precisely the implication of a recent Ohio Supreme Court decision. As long as the confession or admission was part of an attempt to apologize, the doctor can deny it all later – the apology, the admission of fault, the confession he wasn’t paying attention – all of it.

According to the decision, Stewart v. Vivian (2017-OHIO-7526), as long as the doctor says something remorseful (or even a gesture showing remorse) during the conversation, then the rest of what the doctor says (things like “My mistake. I was negligent. I should never have given your daughter that drug I knew she was allergic to”) is inadmissible.

Ohio has an “apology statute” (O.R.C. 2317.43) which prevents patients from using their doctor’s apology or sincere expression of sympathy against their doctor. This law made some sense and was really a non-issue, until now. Prior to this new ruling, if a doctor said he was “sorry about what happened,” the victim or the victim’s family couldn’t use that statement to argue that the doctor admitted a mistake. This isn’t really a big deal. People can and do apologize for things that aren’t necessarily their fault. When someone dies, it is rather natural to say “sorry for your loss.” That doesn’t mean you caused the death. And Ohio’s apology statute made sure that in such circumstances a sincere apology wasn’t used against a doctor in court.

But this is something altogether different. Now, a doctor can make factual statements of his conduct, and he can tell a patient he was negligent, and yet it won’t be admissible, so long as he throws in there an “I’m sorry,” or an equivalent gesture (a downward look, perhaps, who knows?).

Rest assured, if you tell the doctor you made a mistake, that will come into evidence. Your doctor can use your statements against you in court, but it is not a two-way street.

This new ruling is just piling it on against victims of medical mistakes. Ohio laws already extend protections to physicians which the rest of us do not get. For example:

  • Low caps on damages to severely injured patients, even those who have been raped or sexually assaulted by their doctor
     
  • A shorter time limit for filing suit. You get one year to file your medical malpractice suit if a doctor operates on the wrong body part but four years if your neighbor walks on your property without permission. Seriously?!

With its latest anti-victim ruling, the Ohio Supreme Court has just made it even harder to succeed in a medical negligence case. 


Safe Driving of the Utmost Importance in School Zones

Shared by Sandel Law Firm 

www.sandellaw.com/blog


Among the people who are impacted by the conduct of drivers here in Ohio are children. Unfortunately, each year, hundreds of young pedestrians become the victims of traffic crashes while out walking in Ohio. State statistics indicate that there have been nearly 3,000 traffic accidents involving pedestrians at or under the age of 18 in the state over the past five years.

Such accidents can put a lot of things at risk for a child, including their life. Last year, 11 people were killed in Ohio traffic crashes involving pedestrians 18 and younger.

There are few more tragic events that can come up for a family than a young family member being seriously injured or killed while walking out on the roads. When dealing with such a tragedy, what kind of help a family has can be very impactful. This includes what help a family has with any legal issues arising out of the incident.

The importance of keeping the state’s roads safe for young pedestrians is an especially relevant topic this time of year. This is because the school year is nearing its start. Among the things the school year sees are lots of kids out walking as part of their travels to and from school.

During the school year, there are many things it can be extremely important for motorists to do when driving in school zones and the neighborhoods around such zones. This includes making sure to obey stops signs and other traffic signs, keep their speed down and stay distraction-free behind the wheel. When drivers fail to act safely in such areas during the school year, they can be putting students in danger.

One hopes all Ohio drivers will keep this in mind as summer transitions to the school year.


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Social Media Tips for Health Care Professionals

Shared by Kendo Dulaney LLP

www.mann-law.net/blog


Social media is an easy way to connect with friends and escape from reality for a few moments. However, as a health care professional, you know that you have to take extra caution not to let the personally sensitive nature of your career spill onto social media. If you post something that crosses the line of confidentiality, it can be hard to remove the information from the public sphere. How can health care professionals protect themselves online?

Although Facebook has been around for more than a decade, social media is still an emerging platform. As of 2014, 90 percent of physicians used social media for personal reasons, according to the National Institutes of Health (NIH).

As social media continues to grow in our lives, here are three social media best practices for health care professionals.

       1. Understand your employer's social media policy

You know the ins and outs of the Healthcare Insurance Portability and Accountability Act (HIPAA), but have you read through your employer's policy that could define additional rules on social media use?

Unfortunately, it usually isn't until someone in the workplace violates a policy that other employees take the time to make themselves aware of it. Ask your human resources department for a copy or ask them to post it publicly along with other workplace documents so that everyone is aware of the policy.

       2. Don't respond directly to patient questions on social media

While social media can be a great way to promote yourself and your organization online, it can be difficult to know when outreach goes too far. According to NIH, two-thirds of doctors feel uncomfortable using social media as part of their practice. Likewise, patients may use your personal or organizational social media pages to ask questions.

If a patient reaches out on social media, you may request that they contact your office directly via telephone or make an in-person appointment.

       3. Know the process to seeking help

If you receive notification from the state licensing board about a potential violation of HIPAA or another confidentially policy due to social media, it is important to understand your rights. Even if you felt you have done nothing wrong, a license defense attorney can provide coaching how to talk to the state board.

By understanding a few social media best practices as a health care professional, you can better provide focused resources to your patients.


Even 40 Years After Contact, Asbestos-Related Illness Risks Grow

Shared by The Goldberg Law Firm Co., LPA

www.smglegalblog.com


Asbestos is a hazardous product. In Ohio and across the country, victims of exposure as long as 40 years ago continue to face serious health risks. The risks of developing a cancer called mesothelioma -- an asbestos\-related illness -- have been found to keep increasing over passing years. Recent studies concluded that affected workers' chances of developing this disease grow each year, even if their last exposure occurred four decades ago.

Pleural mesothelioma is primarily caused by asbestos, which remains latent for many years. International studies determined that workers who were exposed to asbestos as recently as within the last five years were at a lower risk than those who were exposed 40 years ago. Research also focused on the dangers of different types of asbestos of which crocidolite (blue asbestos) and chrysotile (white asbestos) are the primary types. The results showed that blue asbestos produced significantly higher risks.

Furthermore, researchers determined that the exposure amount directly affected the level of the risk to develop this type of cancer. The dangers are further increased according to the length of time of the exposure. Workers who were exposed for many years show a much higher rate of developing mesothelioma than employees who only worked with asbestos for one year.

People in Ohio at risk for developing an asbestos-related illness due to exposure many years ago may have questions about their rights to compensation, the statute of limitations and more. A consultation with an attorney who is experienced in dealing with mesothelioma cases will likely be helpful. The attorney can review the details and offer advice and guidance with respect to the possibility of legal recourse for financial damages sustained.


Fire Ball Tragedy Makes Unfairness of Ohio Law Clear

Shared by Rourke & Blumenthal

www.randbllp.com/Blog


On August 6, 2017, Netherlands based KMG, the manufacturer of the Fire Ball ride that catastrophically failed, causing a death and several severe injuries, posted on its Facebook page that it has determined that corrosion inside of one of the Fire Ball’s gondola support beams had “dangerously reduced the beam’s wall thickness over the years.” This allowed one of the gondolas carrying six people to be launched like a catapult, resulting in some riders being throw as far as 50 feet. KMG’s Facebook post concerning its conclusion regarding the cause of this catastrophe is by no means the final statement. Many other experts will be weighing in over the next weeks and months regarding what caused this tragedy and, perhaps even more importantly, what can be done in the future to prevent it.

Certainly, if corrosion was one of the culprits, many things come to mind regarding how this corrosion could have been prevented and why it was not discovered earlier. KMG knew that its ride would be used outdoors in all types of weather, including high humidity and rainstorms. What did the designer and the manufacturer do to prevent moisture from entering a critical component like the support beam? What was done to insure that the metal used for the support beam was resistant to corrosion so that catastrophic failures like the type that occurred at the Ohio State Fair would not occur? Further, what forms of inspections did the designer and manufacturer recommend be utilized to detect corrosion before it became “excessive”? For example, was periodic disassembly and internal inspection required? Was radiographic inspection recommended to detect internal corrosion? There are many other examples of how corrosion should have been anticipated and designed out of the product or how vigilance for such corrosion could have been designed into the instructions and warnings for the product at the time that KMG manufactured the Fire Ball amusement ride in 1998.

Unfortunately, in 2005, the Ohio Legislature passed amendments to Ohio’s Product Liability Statute in an effort of so-called “tort reform” that may give KMG a free pass. As a result, the Ohio Revised Code now states that “no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of the product later than ten years from the date that that product was delivered to its first purchaser …” It can be expected that KMG will claim that it is immune from liability since the Fire Ball was manufactured in 1998. The potential ability for KMG to escape liability under Ohio’s Product Liability Ten Year Statute of Repose shows just how outrageous this statutory provision is. The fact that metal can corrode was well known in 1998, as well as in 1898, and for centuries before that. The fact that KMG may have ignored the risks of a corrosion to save money in regard to the types of materials it used or the method of manufacturing the Fire Ball were just as clear in 1998 as they are today. There were many types of materials and manufacturing processes in existence in 1998 that could have been used to reduce or eliminate the potential for corrosion. Just ask manufacturers of airplanes what they did to avoid internal corrosion in wings and other components of passenger jets that are still flying today that were manufactured well before 1998.

We at Rourke & Blumenthal hope that each victim of the horrendous Fire Ball tragedy is properly compensated for their losses. Sadly, Ohio Revised Code § 2305.10(C)(1) will make the victims’ fight for justice much more difficult to achieve. Anyone who is equally as outraged as we are should contact their State Legislature immediately and ask them to draft legislation to remove this grotesquely unfair limitation of the rights of Ohioans.

More information about Ohio’s unfair 10 year statute of repose for product liability claims can be found here.


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Ohio and Greater Cleveland’s law on Bicycle “dooring” accidents ORC §4511.70(C)

Shared by Kenneth J. Knabe | Knabe, Brown & Szaller Co. LPA

brownandszaller.com/blog


Thanks to WKYC’s “The Investigator” Tom Meyer for including me in his feature on the topic of “dooring” on the evening news http://www.wkyc.com/news/investigations/investigator-do-the-dutch-reach-to-avoid-dooring/455572541.  A growing problem for cyclists and drivers, dooring occurs when a motorist in a parked vehicle suddenly opens the driver’s side door without first checking to see if anyone (such as a cyclist) is passing on the left. Dooring usually results in serious personal injury to the cyclist.

With the term “bike-friendly” all over town these days, Meyer shared a great tip known as the “Dutch reach”, a technique believed to have originated in the Netherlands currently taught in Massachusetts driver safety classes.  When parking a motor vehicle and preparing to exit, reaching across the body to open the driver’s side door with the RIGHT hand rather than the left causes the body to pivot, providing an automatic view of the blind spot and who/what might be coming along the road from behind.  So, why not give the “Dutch reach” a try?  Then, share it with everyone you know who drives a motor vehicle! 

Records of dooring incidents aren’t yet kept in the city of Cleveland, but are tracked in Chicago, where one out of every five bike accidents is due to dooring. 

Ohio Revised Code §4511.70(C) states that no person shall open the door on the side available to moving traffic unless and until it is reasonably safe and can be done without interfering with the movement of other traffic.  Since a bicycle is defined as a “vehicle” under Ohio Revised Code § 4511.01(A), it certainly qualifies as traffic. Violation of this statute results in a minor misdemeanor and a fine of up to $150.

Cleveland Ordinance §451.07 specifically states that “traffic” includes bicycles, providing clearer protection to cyclists. 

The following local ordinances simply mirror Ohio Revised Code without specifically mentioning bicycles:  §331.48 Lakewood; §452.08 University Heights; §351.08 Cleveland Heights; §351.08 Westlake; §351.16 North Olmsted; §351.08 Rocky River; Bay Village currently does not have an ordinance regarding opening a door into oncoming traffic, or dooring, so Ohio Revised Code  §4511.70(C) would apply.

Cyclists injured by dooring can argue that the motorist violated Ohio Revised Code §4511.70(C  or a local ordinance by opening the door when it was not reasonably safe to do so! We have used this statute and the Cleveland local ordinance to establish liability and recovery for ia cyclist seriously injured by dooring. 


Asthma: A Common Diagnosis that just may be Wrong

Shared by The Heck Law Offices, Ltd.

www.hecklawoffices.com/blog

Asthma is a terribly difficult disease to manage, and statistics indicate that it's on the rise, particularly among children and adults of color. However, what if many of those people who are diagnosed and treated for asthma actually have a different disease instead?

A recent study is causing a stir among the international medical community because it suggests that as many as one out of every three adult asthmatics are misdiagnosed.

To confirm their theory, researchers weaned around a third of the study's patients off their asthma medications. The vast majority of those able to wean off the steroids and inhalers had essentially normal lung function tests a full year later -- indicating that they weren't asthmatic.

While it's possible that some of the patients were in remission, it's likely that most were never correctly diagnosed in the first place. Researchers further determined that some of the patients misdiagnosed with asthma had other serious diseases that had gone untreated due to the misdiagnosis. These conditions included pulmonary hypertension, heart disease, and gastroesophageal reflux disease, which can lead to some forms of cancer when it remains unchecked.

In addition to the fact that those patients with serious conditions had their real medical needs unmet, the study indicates that many others are simply taking medication that they don't need to treat a condition that they don't have.

While some asthma medications, like inhalers, have minimal side effects, it's also common to treat asthma with oral steroids. Steroids can be hard on the human body. Among other things, steroids can cause people to gain massive amounts of weight, which can lead to diabetes, and develop cataracts or high blood pressure.

The study also indicated that many of the misdiagnoses could have been prevented with proper testing. Primary care doctors often rush to diagnosis and put their patients on asthma drugs instead of sending them to a pulmonologist for spirometry testing, which would properly confirm a diagnosis of asthma.


A Lawyer Should Negotiate or Review your Severance Package Offer

Shared by NachtLaw PC

www.nachtlaw.com/blog


It is no longer a world in which a person starts working at a company in his or her 20s with an expectation of working there until retirement. It is more likely nowadays for a person to have several employers throughout his or her career. However, sometimes the employment relationship ends because the employee chooses to leave and sometimes it ends because of termination or layoff.

When a worker is laid off or terminated, he or she may be owed or offered a severance package, which is basically a separation agreement to continue certain benefits beyond the job, provide severance pay or impose certain terms on the parties. It can be extremely important not to accept the terms or sign a severance offer until you have an experienced employment lawyer review it or even step in and negotiate better terms on your behalf, if possible.

Get legal advice and take time to review thoroughly

While it may be tempting to accept the agreement immediately because it promises needed severance pay, other terms of the agreement may not be in your best interest. For example, you may be asked to waive the right to sue the employer, but you may have a valid claim for wrongful termination or previous discrimination and waiving the right to sue for those wrongs may not be a good idea.

It can be important to involve a lawyer in your severance agreement whether you are an hourly worker, a salaried midlevel employee, a manager or an executive.

The earlier you involve legal counsel, the better. For example, if you have an idea you may be facing a layoff, talk to an attorney even before it happens so you can be prepared. Tell the lawyer if when you were hired you signed an employment agreement that contained promised severance terms, your employer has a severance policy that applies companywide or your employment manual contains severance terms that would apply to anyone in your position.

Consider negotiation

  • You may have a set time to review the terms before deciding whether to sign an agreement, but speak to a lawyer as soon as possible in any event. Today we will touch on some of the severance provisions of concern that should be discussed with your lawyer and be the subject of potential negotiation:
  • You may be offered money, either a set amount or a certain number of months of continuing salary, for example. Your lawyer may advise you to negotiate for more.
  • You may be owed unpaid but earned vacation time.
  • You may need unemployment benefits, but may be asked to waive the right to claim them.
  • You may need continued health insurance because of a medical crisis or long-term condition in you or a family member. While you probably have a right to purchase continued health coverage under COBRA, those premiums are usually expensive, almost prohibitively so for some. You may be able to negotiate continuation on the company policy for a set time.
  • You may be asked to accept a noncompete agreement, which means that you are asked not to work for a competitor. Before you agree, your lawyer should review the terms of a noncompetition clause to be sure it contains legal restrictions as to the geographical scope, length of time and other restrictive terms. You may need as much ability to compete with your former employer as possible in a new position.
  • You may be asked to agree to a nonsolicitation clause, meaning that you agree for a certain period of time not to solicit the same clients or customers that your current employer serves. Your counsel should review such a provision to be sure it is reasonable and enforceable in its geographical scope and length of time.
  • You may ask to keep company equipment like a cell phone or laptop.
  • If you are an executive, there may be perks or investments that need careful negotiation.
  • And more

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Wrong Dose of Anticoagulation and Stroke

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

www.mishkindlaw.com/blog


 

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

https://dogbitesohio.com/blog

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, DogsBite.org 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

DogsBite.org 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, stopbsl.org. (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, DogsBite.org 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 

www.plevinandgallucci.com/#legal-news


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.


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