“Dead in Bed” Claims on the Rise
Shared by The Eisen Law Firm
Amanda Abbiehl was a happy, energetic teenager. She had just graduated from high school and was excited to start college. One day, she came down with a sore throat. Her symptoms were so severe that she was having trouble breathing. She was admitted to St. Joseph Regional Medical Center. Two days later, she was dead. According to autopsy reports, the official cause of death was cardiac arrest due to a virus.
However, in a lawsuit filed by Amanda’s parents against the hospital, it was alleged that doctors, nurses, and medical staff administered numerous drugs, including narcotics, which are known respiratory depressants. They argued that Amanda’s pain pump was improperly administered, and that she was not monitored properly. Amanda’s parents argued that the hospital’s negligence caused their daughter’s death.
Sadly, many families like Amanda’s are finding out about a deadly secret—that many hospitals experience the sudden, unexpected, and preventable deaths of their patients. Most of these claims occur after a surgery or medical procedure is performed, at a time when most assume the most serious risks have passed. In fact, it often occurs within hours of a procedure.
Respiratory depression, which causes low levels of oxygen in the bloodstream that may lead to cardiac arrest and brain damage, is largely responsible for these deaths. In some cases, opioid painkillers actually suppress the respiratory system to dangerous levels. These drugs may stay in a patient’s bloodstream for longer than anticipated after a procedure, which means that a patient may require additional monitoring. Respiratory depression may be attributable to:
- Inadequate knowledge about opioid potency by the doctors who prescribe the medications
- Improperly prescribing multiple opioids
- Failing to properly monitor patients on opioids
- An overreliance on opioid medication and insufficient use of other methods of pain relief
- Undiagnosed sleep apnea
The Anesthesia Patient Safety Foundation has encouraged continuous monitoring of all patients, specifically by pulse oximetry. Pulse oximetry measures oxygen levels in the blood. With proper monitoring, nurses and other medical staff can be alerted if oxygen levels drop too low. Some hospitals have even installed wireless systems to alert doctors and nurses of possible developing respiratory depression.
“Dead in bed” incidents are so prevalent that in 2014 a dead in bed registry was created. Sadly, many hospitals have not provided full reports, although more detail is needed for the sake of transparency and patient safety.
Some argue that hospitals are providing excessive pain medication to patients, possibly with the hope of achieving higher ratings from various governmental or private ratings agencies that focus on patients having a “pain free” hospital experience. Higher ratings can equal more federal cash. In fact, the American Hospital Association has commented that the Hospital Consumer Assessment of Healthcare Providers and Services (HCAHPS) indirectly may be contributing to an opioid epidemic. That Assessment is really a survey of patients, who are asked about how their pain was managed in the hospital. The less pain, the better the survey numbers; the better the numbers, the greater the reimbursement to the hospital from the Centers for Medicare and Medicaid. Therefore, more pain killers translates to more money for the hospital. This can be a dangerous situation.
Interestingly, basic technology to measure oxygen levels in the blood stream is cheap—possibly as inexpensive as $25 per patient. Yet, up to 50,000 patients on “low risk” hospital floors have died or suffered serious brain injuries in the past ten years from respiratory depression.
How can patients evaluate hospital safety?
The Leapfrog Group provides letter grades to hospitals based on “patient safety, helping consumers protect themselves and their families from errors, injuries, accidents and infections.” It claims that “selecting the right hospital can reduce your risk of avoidable death by 50 percent.” Alarmingly, almost half of the hospitals in the country had a C rating or below. Others refuse to provide information necessary to be “graded.”
From Guesswork to Precision: Paid Social Media for Attorneys
Shared by FindLaw
We all use Facebook to keep tabs on our college roommates and see what everyone is doing for summer vacation. Given its entertainment value, attorneys could be forgiven for not realizing Facebook is the powerful marketing tool that it is.
Furthermore, Facebook leads the pack of social platforms in terms of being able to customize an audience – age, occupation, interests, location – for paid social promotion. In other words, Facebook isn’t just a platform for looking at your cousin’s wedding photos. It’s an excellent way to make sure a key message gets to the right audience at the right time. Now, a tool with such a wide user base and unparalleled targeting capabilities must be fairly expensive, right? Not so. Based on a review of thousands of law firm accounts, FindLaw’s data shows the average cost to get a message to 1,000 targeted users falls between $10 and $15. That works out to about one cent per impression.
In the history of marketing, there has never been a more serendipitous alignment of audience, specificity and price.
The pool of prospective clients on Facebook is almost unimaginable. Sound hyperbolic? When marketing firms talk about Facebook users just within the United States, they use numbers like 162 million. Consider that the Pew Research Center reported 79 percent of online adults were Facebook users in 2016. Those aren’t just teenagers and college students. The same survey found that 72 percent of online adults aged 50 to 64 subscribed to Facebook, and 77 percent of online adults with an annual household income of $75,000 or more were on Facebook. Sound like your type of client?
Nobody knows more about their user base than Facebook. Every interaction with the site, from initial signup to the latest click, is noticed and used to paint a more thorough picture of every user on the site, the ways they use it and the messages and information they want from their network. This laser-like specificity presents an unprecedented opportunity for law firms to target their message to the exact audience they want. It’s what makes Facebook so exciting to law firms. With Facebook, you spend just what you want to put your message exactly where you want it.
Take the example of targeting DWI cases. If you’re in Cleveland, you might target sports fans who like the Cavaliers or the Browns. You may also look to users age 25-40 who check in to Great Lakes Brewing Co. Facebook allows its users to check in and like all kinds of businesses and social events then the social platform gathers that information so companies like law firms reach their intended audience.
Facebook’s sophisticated targeting can work wonders, but it needs just a little input from you before it can work. Here are three general tips that will help you lay the groundwork for using Facebook to attract new clients.
- Consider the message: It isn’t necessary, or even advisable, to pay to promote every post. Spend a little time thinking about what the key messages are for your firm and plan to feature those.
- Consider the audience: Facebook can offer you just about anything, so try to think of your ideal client. What is this client’s income level and how old is he or she? How far do you think your clients are willing to travel to see an attorney? That may affect the geographic scope of your targeting. Creating a mental blueprint of the sort of client you want will help you target Facebook users effectively.
- Consider the frequency: You don’t want to inundate your audience with the same message over and over again. Try to devise a rhythm for your paid Facebook posts and consider variations on the same theme of your most important marketing messages.
FindLaw has seen costs-per-click as low as $1 for firms. And within the legal industry, the paid social promotion surface is just getting scratched. It’s only a matter of time before these prices increase as more firms take to Facebook. But for now, promoting your firm doesn’t get much more affordable than this.
The last thing to know about using Facebook to help market your law firm is the potential of its affordable, highly targeted message capabilities won’t last forever. At present, your competitors have not taken full advantage of it. If you’re going to do so (and you should), the time to start is now.
What to be more effective with paid social media? Download the new FindLaw white paper, “From Guesswork to Precision: How Paid Social Media Delivers for Your Firm.”
Family Seeks Justice for Dog Killing in Carroll Township, Ohio
Shared by the Law Firm of Richard M. Lewiswww.richard-m-lewis.com/blog
A Carroll Township man allegedly shot and killed a dog belonging to a neighboring family. The dog shooting reportedly occurred over Christmas weekend, just one day after the black Labrador retriever ran away from its owners’ residence on Toussaint North Road in Carroll Township, Ohio.
The family spent Christmas Eve searching the surrounding area for the missing animal. One of the owners of the dog reportedly heard sounds of the family dog barking in the distance, followed by the loud sounds of multiple gunshots. The owners came across paw tracks that led to the suspect’s residence. The family later confronted the suspect at his home, but he reportedly told them that he had not seen the animal. He then slammed the door in their faces.
The family subsequently notified local law enforcement, which dispatched officers to the area to investigate. Police later found the dog in a barrel on the suspect’s property. Carroll Township police officers also spoke with the suspect, who told them that he shot the dog in self-defense. The suspect said that the animal was behaving aggressively and loudly barking at him prior to the violent incident. The suspect reportedly went into his home, got a shotgun and a pair of earmuffs, and then went back outside to shoot the animal. After the shooting, the suspect reportedly tried to conceal the incident by putting the dog’s body into a large barrel. According to law enforcement, the suspect planned to burn the dog inside the barrel and hide all evidence of his act because he “did not want to make enemies” of his neighbors.
Civil Liability for Dog Killing in Carroll Township
Prosecutors in Ottawa County, Ohio are looking into the shooting incident and determining whether criminal charges should be filed against the suspect. Although property owners have a legal right to protect themselves and their property against an aggressive dog, it is against the law to shoot a companion pet without provocation.
Now the family that lost the dog is exploring their legal options as they look to obtain some form of justice for their loss. While authorities consider the possibility of filing charges, the owners of the dog have started an online petition that asks prosecutors to make a bold statement about animal cruelty. The petition declares that no one should be allowed to shoot and kill a dog.
The family is understandably heartbroken about the loss of their dog. They made a point of noting that their dog barked a lot but was never aggressive toward anyone and did not pose any sort of threat to the suspect. In fact, said the dog’s owners, the dog was “scared of his own shadow.”
Regardless of whether criminal charges are filed in the case, the dog’s owners may be able to file a civil lawsuit against the suspect to get damages that include compensation for burial costs, sentimental value of the dog, and emotional distress caused by the dog’s death. The owners already arranged for a burial of the dog on their property.
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“Runaway Jury Verdicts” – Are Juries Really Out Of Control?
Shared by Mark B. Smith, LPA
When big corporations and insurance companies take aim at our civil justice system, they often point to the problem of “runaway jury verdicts” and “jackpot justice.” They argue that juries made up of ordinary citizens cannot be trusted to decide issues like whether a hospital or doctor committed malpractice, or who caused a vehicle crash, and what level of compensation would be fair and reasonable for those who have been injured. Oddly enough, these same corporate interests generally have no problem allowing a jury to decide a criminal case, where the very life of the defendant may hang in the balance. But as for holding them responsible when a serious injury or death has resulted from a car crash, trucking accident, nursing home neglect or medical malpractice, juries are simply too liberal and unsophisticated for the job.
Or at least that’s the argument they make when these corporations spend huge money lobbying state and federal legislatures for more and more “tort reform.” Laws which limit the amount of compensation juries can award, and which place artificial restrictions on the evidence juries can hear, are generally referred to as tort reform (“tort” is legalese for a careless act that causes injury or death). Tort reform laws stack the deck in favor of defendants and their insurance companies. These laws allow them to win the case by persuading courts and juries to decide in their favor, but also make sure that if they lose the judgment will be artificially limited or “capped.” With tort reform, defendants can win as much as ever, but if they lose the injured person or family will only get a limited amount. With the financial resources corporations have to spend on defending cases, and tort reform laws passed to give them artificial protection, the deck is increasingly stacked against people and families who have been injured.
So, having lobbied for and received lots of tort reform laws, why should large corporations and their insurance companies worry about “runaway juries?” Well, it turns out, they don’t. The truth which these “tort reformers” don’t tell the lawmakers is that juries are not out of control. In fact, juries tend to be very conservative both in terms of finding fault (“liability”), and awarding compensation (“damages”). How do we know that’s true? We know because, time after time, when insurance companies are given the choice to present their case to a jury, or just to a judge, they choose a jury! This author himself has seen this over and over when filing lawsuits here in Cincinnati, Ohio and elsewhere in the Midwest. In fact, in one recent case a prominent insurance company forgot to ask for a jury, and then when realizing its mistake went to great lengths to ask the Court to allow it a “do over” so the case could be presented to a jury.
Big corporations and insurance companies have learned that they can have their cake and eat it too. To get the laws they want, they aggressively lobby state and federal legislatures with anecdotal stories of “runaway juries.” But once they’re done lobbying, and they have the legal deck stacked in their favor, they choose to present their cases to those same juries. They know, and have always known, that juries are not out of control. If they were, why would insurance companies work so hard to make sure they get a “jury trial?”
Serious Injury on the Job
Shared by David Kulwicki | Mishkind Kulwicki Law Co., L.P.A.
When a worker sustains a serious injury on the job in Ohio, the obvious place to turn for compensation is the State of Ohio’s Bureau of Workers Compensation the “BWC”). But did you know that other sources of compensation may be available? Generally, when a worker is injured as a result of his own carelessness or the negligence of a co-worker while on the job, he/she is limited to compensation from the BWC. The BWC is an employer-friendly compensation system that is prone to delays, constant battles, and inadequate compensation. There are a number of situations where additional, more favorable compensation can be obtained.
An intentional tort case may be brought against an employer when the employer’s negligence is tantamount to intentionally putting the worker in harm’s way. This most commonly occurs when an employer removes a safety guard that is designed to prevent injury.
Another potential source of compensation may be available when the workplace injury occurs as a result of negligence by employees of another company. This scenario arises frequently on construction sites, when one subcontractor engages in a dangerous practice that results in an injury to an employee of another subcontractor. These so-called “third party actions” are also available when a worker is injured in a car accident, truck crash or other transportation-related accident caused by someone other than a co-worker.
Third party actions may also arise when a worker is injured on another’s property due to a hazard on that property. For instance, a salesperson who sustains injury while calling on a customer may have a valid third party claim. These so-called “premises liability claims” have one significant limitation: the “open and obvious” defense. Ohio courts have held that if you sustain injury on another’s premises, you cannot collect compensation if the injury-causing defect or hazard is open and obvious. For example, natural accumulations of ice and snow outside of a building would be considered open and obvious. Likewise, an open hole or a sidewalk crack that can be seen with an unobstructed view would be considered open and obvious.
Premises liability claims in Ohio are winnable only if the injured person can prove that the injury-causing hazard was created by the premises owner or leaseholder, or if the owner or leaseholder knew or should have known of its existence. Early in my career as an Ohio personal injury attorney, I handled an interesting premises liability case that illustrates the latter “notice requirement” perfectly. My client was traveling on an interstate when a large dead tree from an adjacent private property fell onto the roof of his car. The client sustained a serious brain injury as a result of the crash. With the help of a tree expert from The Ohio State University, I was able to prove that the tree had been dead for several years, such that the property owner knew or should have known that it posed a hazard to passing motorists.
Another third party action may arise when a worker is injured by a crime occurring on the premises where he/she is a worker. These cases seem to be occurring with greater frequency in our increasingly violent society. In order to hold a premises owner liable for a criminal assault, rape or murder committed by a third person on their property, the injured party must show that the property owner knew or should have known that the premises were likely to experience criminal activity but failed to take adequate security precautions to protect visitors from serious injury.
Once a BWC claim is filed, the Bureau or a self-insured employer has an automatic right of subrogation to any funds recovered by the employee from a third party. This subrogation interest includes any future BWC payments that the employee may be entitled to. However, the BWC subrogation statute contains a provision that allows a setoff for the costs of recovery (i.e., lawyer fees and case expenses) and for “uncompensated” personal injuries such as pain and suffering or wage losses and expenses that are not covered by BWC benefits.
How to Prove Emotional Distress
Shared by Agee, Clymer, Mitchell & Portman Co., LPA
Plaintiffs who file personal injury or intentional tort claims often ask defendants to pay damages for the infliction of emotional distress. Ohio courts make collecting on such claims difficult by following rules that generally require plaintiffs to give personal accounts of their suffering that are corroborated by witnesses and health care professionals.
An attorney can help a plaintiff who develops new or worsened depression, post-traumatic stress disorder, or another mental or behavioral problem following the negligent, reckless, or intentional actions of another clear these evidentiary hurdles.
Proving the existence and extent of emotional distress requires presenting some combination of five types of evidence to a civil court judge or jury. These are
- Intense emotional suffering—In layperson’s terms, showing this requires answering the question “How badly did the harmful action mess you up?” Being unable to return to work because of lingering fear or loss of trust in other people counts as intense emotional distress, as does falling into a depression so deep that the plaintiff’s marriage and children suffer.
- Prolonged suffering—Courts do not set strict time limits on claims of emotional distress, but mental or behavioral problems that last for months or years are the most likely to qualify for compensation.
- Physical symptoms of emotional distress—Severe weight loss, self-harm, balding, ulcers, shakes, and tics can stem from emotional stress. Presenting evidence of these problems can do much to convince a judge or jury that mental and behavioral problems occurred.
- Connection between the defendant’s actions and the emotional distress—Did the problems develop or grow more severe after the car accident, physical or personal attack, or problem at the defendant business? The severity of the incident may also be taken into account. For instance, being hit at low speed in a parking lot will generally be considered less likely to trigger emotional distress than will getting trapped in a preventable restaurant fire.
- Medical documentation—Diagnoses from doctors, reports from social workers, and/or testimony from mental health counselors will help a plaintiff make his or her case for compensation for emotional distress.
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Am. H. B. No. 154; Ohio's newly passed Three Foot Bicycle Passing (ORC §4511.27) and “Dead Red” (ORC §4511.132) laws.
Shared by Kenneth J. Knabe | Brown & Szaller Co., LPA
Bicycling is the second-most popular outdoor activity; commuter cycling is also on a steady upswing with an alarming increase in bicycle accidents and even deaths. Ohio has recognized this increase in cycling and accidents and has joined numerous 27 other States in passing the three-foot safe distance passing law. Many thanks to The Ohio Bicycle Federation, Bike Cleveland, the Ohio House and Senate, and the Governor for the passage of this much-needed state wide bicycle safety law.
Ohio’s three-foot minimum safe distance passing requirement, Ohio Revised Code (ORC) §4511.27 and the “dead red” exception, ORC §4511.132 were signed into law by Governor Kasich on December 19, 2016 and become effective March 19, 2017.
Under newly-enacted ORC §4511.27(A)(1) & (2), a driver of a car passing a cyclist riding in the same direction shall pass to the left at three feet or more, and shall not drive again to the right until the driver's vehicle has safely cleared the cyclist. (This rule does not apply at intersections controlled by traffic control signals.) Upon the car’s audible signal, the cyclist being passed must give way to the right in favor of the overtaking car, and the cyclist shall not increase speed until completely passed by the car. A driver that violates this section is guilty of a minor misdemeanor unless convicted of one or more “predicate motor vehicle or traffic offenses” which include most other traffic offenses. See ORC §4511.27 (B) & §4511.01 (III) (1)
ORC §4511.132 was amended to permit a cyclist to stop and then safely enter an intersection on “dead red”. This occurs when a red light is not tripped to green because of failing to detect a vehicle, i.e. a bicycle. In this instance, a bicyclist may ride through the intersection on red only after making a complete stop, and only if the cyclist can enter the intersection safely and yield to oncoming traffic which has the right of way. A cyclist better be sure their bike is not detected before entering on red and that it is safe to enter!
The pertinent language of ORC § 4511.132 is as follows:
The driver of a vehicle... who approaches an intersection where traffic is controlled by traffic control signals shall do all of the following, if... the signals are otherwise malfunctioning, including the failure of a vehicle detector to detect the vehicle;
1) Stop at a clearly marked stop line, but if none, stop before entering the crosswalk on the near side of the intersection, or, if none, stop before entering the intersection;
2) Yield the right-of-way to all vehicles... in the intersection or approaching on an intersecting road, if the vehicle... will constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways;
3) Exercise ordinary care while proceeding through the intersection.
Merit Decision: No Police Liability for Injuries to Innocent Bystander During High Speed Chase of Fleeing Felon. Argabrite v. Neer.
Shared by Marianna Brown Bettman
“Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.”
Justice French, Majority opinion.
“Today’s majority ruling will have a chilling effect on policing and will aid criminals in their fight to avoid apprehension.”
Justice Kennedy, Separate Concurrence
“Unless pursuit is necessary for the immediate protection of the public, it should be curtailed so that it does not create immediate risk”
Justice Pfeifer, In dissent
On December 27, 2016, the Supreme Court of Ohio handed down a merit decision in Argabrite v. Neer, Slip Opinion No. 2016-Ohio-8374. In an opinion written by Justice French, the court repudiated an appellate-made “no-proximate-cause” rule, but held the police officers involved in the high speed chase of a fleeing offender were immune from liability for injuries to the innocent bystander plaintiff, and thus were properly granted summary judgment in the case. Chief Justice O’Connor and Justices O’Donnell and Lanzinger agreed with the opinion in full, with Justice Lanzinger adding a short separate concurrence. Justice Kennedy concurred in judgment only, with a lengthy separate opinion in support of the “no-proximate-cause” rule. Justice Pfeifer agreed that the no-proximate-cause rule should be repudiated, and that one officer, Miami Township Sergeant Adkins, was properly granted summary judgment, but dissented as to immunity for the other officers. Justice O’Neill joined that dissent, and wrote one of his own, disagreeing with the grant of summary judgment to the officers other than Adkins. Whew! No wonder these year-end cases took so long to be released. This case was argued February 9, 2016.
In July 2011, appellant Pamela Argabrite was injured in an accident following a high speed police chase of a fleeing offender named Andrew Barnhart. Barnhart was pursued at various times by three officers from the Miami Township Police Department and at other times by two officers from the Montgomery County Sheriff’s Department. (collectively, “the officers.”) Barnhart collided with Argabrite. Barnhart was killed and Argabrite seriously injured.
Argabrite filed a tort claim against the officers in the Montgomery County Court of Common Pleas, arguing that the officers were not entitled to governmental immunity because their actions were willful, wanton, reckless or malicious. The trial court granted summary judgment to the officers on the no-proximate-cause rule formulated in Lewis v. Bland and adopted by the Second District Court of Appeals in Whitfield v.Dayton, finding that no reasonable juror could find the officers conduct extreme or outrageous.
In a split decision, the Second District affirmed the trial court’s grant of summary judgment to the defendants on the basis of the no-proximate-cause rule.
Read the oral argument preview of the case here and the analysis of the argument here.
Key Statutes and Precedent
R.C. 2744.03(A) (Political Subdivision Tort Liability and Exceptions)
(In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner)
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711 (willful, wanton, and reckless behavior describe different degrees of culpability; defines each term; also holds the violation of a statute, ordinance, or departmental policy enacted for the safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant to determining the culpability of a course of conduct.)
Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466 (1949), paragraph three of the syllabus (the question of proximate cause is ordinarily one of fact, but, where there is no conflict in the evidence, such question becomes one of law.)
DeWald v. State, 719 P.2d 643 (Wyo.1986) (a police officer should be responsible only for the careful operation of his own car; he should not be liable for the unpredictable actions of the driver being pursued for that would make him an insurer of the wrongful acts of a lawbreaker.)
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (1994) ( R.C. 2744.03(A)(6)(b) applies to the actions of a law-enforcement officer.)
Continue reading here: www.legallyspeakingohio.com
Ohio Supreme Court Cuts Rapists Some Slack – $3,000,000 Worth of Slack
Shared by The Magas Firm
Here’s the state of “tort” law in Ohio – your 15 year old daughter goes to a “counseling” session with her pastor… and is twice raped by her pastor, who is convicted and sent to jail. You sue on the local church and the bigger church which helped create your local church on your daughter’s behalf on a negligent hiring/supervision theory – you go through a very painful jury trial and the jury awards a judgment of $3.6 million…
The rapist’s employer then argues that due to “damage caps” contained in “tort reform” laws [passed 10 years ago when doctors were complaining of malpractice awards] your child is only entitled to collect $500,000.
Today, in a 5-2 decision authored by Justice Judith French, the Ohio Supreme Court decided to protect the pocketbooks of those who rape children [and their employers] and upheld that result in Simpkins v. Grace Brethren Church, giving the rapist and his employer a nice break by knocking some $3,000,000 off what they owe to the rape victim…
Oh… and there’s more…
Here it turns out there were prior incidents of inappropriate behavior by this pastor which were reported to, and ignored by, the hiring church. Rather, the pastor’s immediate superior wagged his heavenly finger at the offender, but failed to report the incidents up the chain or take any action against the pastor…
The thing with these types of incidents is that they are not like car crashes – they don’t generate significant physical injuries, fractures, puncture wounds, stitches and scars… they don’t lead to huge amounts of medical bills – and when a child is raped you don’t see large amount of “wage loss” or other “economic” damages- rather, most of the jury’s compensation is [rightfully] aimed at “pain and suffering” damages – past, present and future – to compensate the child for what she went through.
But… the Ohio legislature in all of its infinite wisdom passed a law in 2005 that says if you are only claiming “pain and suffering” and you don’t have “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or … “permanent physical functional injury that permanently prevents [you] from being able to independently care for self and perform life-sustaining activities” then your damages are “capped” at $350,000.00. While you can be awarded ALL of the economic losses you can prove unless you can pigeon-hole your emotional injuries into the magic words you cannot recover more than $350K for pain and suffering…
After a jury trial, the jury found that Simpkins was entitled to $3,651,378.85 in compensatory damages, which included the following: $1,378.85 for past economic damages, $150,000 for future economic damages, $1,500,000 for past noneconomic damages, and $2,000,000 for future noneconomic damages. The jury awarded Gene Simpkins $75,000 for loss-of-consortium.
Today the Ohio Supreme Court basically threw out that jury award… and issued its own award…
Today the Ohio Supreme Court said the tort reform damage caps that reduced a jury award by $3,000,000 were constitutional when a child is raped and the employer of her rapist is ordered to pay.
Today the Ohio Supreme Court held that the rape victim was only entitled to $150,000 in future “economic” losses and $350,000 in pain and suffering…even though the jury awarded her many times that amount.
Further, here, the victim argued that since she was raped twice in the same room she should be allowed to make two claims and two separate $350,000 caps.
However, Justice Judith French and a majority of the Ohio Supreme Court said [in essence]: “…nope…sorry honey, your two rapes occurred too close together to allow you recover twice…”
Justice French wrote
“The oral and vaginal penetrations in this case occurred within a short period of time, in a confined space, without intervening factors, and there is no evidence that Williams’s separate criminal acts affected Simpkins differently.“
In fact, the evidence, as the court described, was this
The catalyst for appellants’ claims occurred in March 2008 when Williams—then the senior pastor at Sunbury Grace—forced oral and vaginal intercourse with Simpkins, then a 15-year-old parishioner, in his office. Simpkins testified that she was seated in front of Williams’s desk for a counseling session regarding her falling grades and unresolved issues at home regarding her parents’ separation when Williams walked around the desk, put his hand on her shoulder, and told her to suck his penis. After repeatedly refusing, Simpkins eventually complied because she thought it was her only option to get out of the office. Simpkins testified that she then ran for the door, but Williams blocked and shut it. She testified that despite her protests, Williams kissed her, pushed her to the ground, removed her pants, and engaged in forced vaginal intercourse with her. Williams pled guilty to two counts of sexual battery in violation of R.C. 2907.03(A)(12) and was sentenced to two consecutive four-year prison terms.
Continue reading blog here: www.ohiobikelawyer.com
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When Past and Present Collide- Being Alert of the Dangers of Driving in an Amish Community
Shared by John K. Rinehardt Law Firm
On a dark summer night, a 16-year-old Amish boy is driving his family’s buggy on a narrow roadway. The buggy does not have taillights or turn signals. There are no street lights on the rural road. The boy directs the horse pulling the buggy to turn into a driveway. The boy does not look for oncoming traffic and turns directly into the path of an oncoming motorcycle. The motorcycle crashes into the side of the buggy. The driver of the motorcycle is thrown from the bike and lands in a ditch. Lying in the wreckage, both the Amish boy and the driver of the motorcycle are seriously injured. The horse is killed. Unfortunately, scenarios like this one are all too common on rural roadways in Ohio. Ohio law does not require buggies to have headlights, taillights or turn signals. The lack of regulations results in an average of 120 reported buggies accidents per year.
Amish people in Ohio do not have to follow the same driving regulations and laws as people with cars. Children as young as 8 are on the road operating buggies. Amish do not have to take driving tests, get a driver's license, or purchase vehicle insurance. They do not use seat belts or even car seats for infants. The lack of guidelines is a safety concern for the Amish and for everyone living in communities that coincide with Amish people.
Normal speeds for horse-drawn buggies range between five and eight miles per hour. Horse-drawn vehicles may be even slower when pulling large farm equipment or when crossing intersections. In addition, horses become tired causing them to move more slowly. The vision of the driver of the horse-drawn vehicle is restricted by the lack of windows and mirrors. When pulling large loads of hay or other equipment, drivers may not be able to see cars behind them.
- Statistics show that more than 65 percent of all traffic deaths occur in rural areas and 50 percent of those deaths are on country roads. Ohio reports, on average, more than 120 buggy accidents a year.
- Ohio and Pennsylvania report a rough average of 60 major crashes involving horses and buggies a year over the past decade.
- An Ohio Department of Transportation review found that injuries occurred in roughly half of those accidents, with fatalities in about 1 percent of them, a rate that is slightly higher than accidents in which both vehicles are motorized.
- That review also revealed that the typical accident involving a horse and buggy occurs when a motorist rear-ends the buggy after misjudging just how slow the horse-drawn vehicle is traveling.
Avoiding a Collision
Even the fastest horse is slower than your car. Therefore, car drivers need to be extra cautious when passing horse-drawn farm equipment. To avoid collisions, you should anticipate left hand turns made by horse-drawn vehicles into fields and driveways.
STAY BACK! Leave some space between your vehicle and a buggy stopped at a stop sign or light. Buggies may back up a few feet after coming to a complete stop. A good rule of thumb is to stop your vehicle far enough back so that you can see where the rear wheels of the buggy touch the road.
A slow-moving vehicle sign should be mounted on all farm machinery, including road construction equipment and animal-drawn vehicles. The sign should signal motor vehicle drivers to slow down. Vehicles displaying the slow-moving vehicle sign are prohibited by law to go faster than 25 mph.
When approaching and passing a horse-drawn vehicle, remember that horses are unpredictable and even the most road-safe horse can spook at a fast-moving motor vehicle. Only pass when legal and safe. Be sure to slow down and give buggies and horse-drawn equipment plenty of room when passing.
Sharing the Road:
The Amish have just as much right to be on the roads as anyone else. The question is how to keep everyone safe.
A safety council made up of Plain residents from Amish Country in Pennsylvania meets several times a year. In 2007, the safety council approached county officials about creating a Pennsylvania driver’s manual for horse and buggy. The goal of the manual is to educate buggy drivers about safety concerns, and for other drivers to gain some perspective about sharing the road with buggies.
With input from the Plain community, the manual is written in a conversational tone and emphasizes a Christian approach to driving. It stresses the importance of buggy lighting, courtesy and following the rules of the road. It includes instructions for handling and hitching a horse and emphasizes having a good harness and using reflectors and child safety seats.
Changing the Rules:
While the manual is a great resource, the problem is that it is filled with recommendations, not requirements. The best way to ensure safety, is to legislate changes to the rules that apply to horse drawn buggies.
Some basic rules that would improve safety include minimum age requirements for buggy drivers, mandatory reflective material for horses (in case they break from the buggy), a driver’s test for buggy operators, an insurance requirement, and license plates for the buggies.
Call your state legislator to urge him or her to adopt these regulations.
Am I protected if a crash occurs?
Because Amish buggies are classified as non-motorized vehicles, their owners are not required to carry any insurance. You might expect that if you are involved in a crash caused by an Amish buggy, you will be protected by your Uninsured Motorist (UIM) insurance. However, most UIM policies contain an exclusion for Amish buggies. If you live in a community that shares the road with Amish buggies, ask your insurance agent if you are covered.
Got a Beef with the Beef? Food Poisoning Victims May Be Entitled to Substantial Compensation
Shared by Nager, Romaine & Schneiberg Co., L.P.A.
That steak and mushroom quesadilla you ate at lunch today seemed a bit, well, strange. You weren’t sure exactly what was wrong with it, but something definitely wasn’t right. And yet, down the hatch it went.
It’s a few hours later now, and things in your world are going south fast. You’re experiencing nausea like you’ve never experienced it before – extreme and unrelenting – and your gastro-intestinal system is in a state of chaos. What’s inside of you is quickly finding its way out—through any available portal.
This is no upset stomach…you’ve been poisoned by the food you consumed, and the misery you will experience for up to the next several hours, or even days, will likely leave you alternately praying to – and cursing – whatever higher power you worship.
Food poisoning is a serious affliction. The Centers for Disease Control (CDC) estimates that roughly one in six Americans get sick from food-borne diseases each year, and another 3,000 will die. Victims contract food poisoning through consumption of food containing bacteria or viruses. This can occur through dozens of different scenarios. Food can become infected early on—perhaps at a farm where it was sourced. It can become contaminated during packaging. It may become contaminated as a result of improper exposure during transportation to a store or restaurant. It also may be improperly stored or cooked.
What are the Various Types of Food Poisoning?
According to the CDC, many different disease-causing pathogens can contaminate foods and cause a food-borne illnesses. Some of the well-known types include Salmonella, Listeria, and E. coli food poisoning. Salmonella is often caused by consuming raw meat, raw seafood, raw poultry or raw eggs. E. coli and Listeria food poisoning occur much less frequently than Salmonella food poisoning; yet they can be very dangerous, causing extreme illness or even death.
Other common types of food poisoning include:
- Clostridium perfringens
What are the Side Effects of Food Poisoning?
When food poisoning occurs, toxins or microbes enter the gastrointestinal tract, which may cause initial symptoms such as nausea, vomiting, abdominal cramps and diarrhea. Overall, symptoms include:
- Frequent vomiting
- An inability to keep liquids down
- Bloody vomit or stools
- Diarrhea for more than three days
- Severe abdominal cramping
- Signs or symptoms of dehydration — excessive thirst, dry mouth, little or no urination, severe weakness, dizziness, or lightheadedness
- An oral temperature higher than 101.5 F (38.6 C)
- Blurry vision, muscle weakness and tingling in the arms
Some cases of food poisoning cause only mild side effects at the outset. Still, food-borne illnesses can lead to serious, even life threating symptoms—especially for children, pregnant woman, the elderly and those with an already weakened immune system. As a result, it may be highly advisable to seek medical attention immediately from a doctor, or at a hospital, in order to receive a proper diagnosis and treatment. If you ultimately consider legal action for your food poisoning, it is essential to understand which type of food poisoning you may have contracted.
Is It Feasible to File a Food Poisoning Lawsuit?
Due to the sheer number of factors involved, the specific cause of food poisoning can be hard to determine. In the case of your quesadilla, your symptoms became painfully obvious after only a short time. Yet often, symptoms may not appear for several hours, or even days, after ingesting the food. During that intervening time, you probably ate more food, possibly during multiple meals.
Food manufacturers are bound by strict food laws that govern processing, handling, storage, transportation and distribution. Many manufacturers and purveyors abide by these laws and standards. Yet too many are aware that their food handling practices are unsound and could potentially cause food-borne illnesses—and still opt to do little or nothing about it. Food purveyors and manufacturers should be held accountable for their actions, so identifying an experienced and capable food poisoning lawyer and filing a food poisoning lawsuit helps hold responsible parties accountable, which eventually can leader to safer food consumption practices that benefit everyone.
Generally speaking, a food poisoning victim can sue a restaurant for food poisoning if the law and evidence sufficiently support that personal injury or wrongful death claim. Additionally, claims may, in certain cases, be made against a grower, food processor and/or distributor.
Telemedicine and Medical Malpractice
Shared by The Becker Law Firm
This scenario may become “the new normal” for millennials: A young woman at work starts feeling nauseous and feverish, but doesn’t have time to visit her PCP’s office. There is a dull pain in her abdomen and she can’t find a comfortable position to sit in. She whips out her smartphone and enters her symptoms into an application. The app asks her a few quick questions with multiple answer choices. Based on the nature, duration, and location of her pain, the app informs her that it could possibly be appendicitis. She is advised to seek immediate medical attention. A co-worker drives her to urgent care, where the diagnosis is confirmed. Without prompt treatment, her appendix could have burst and the infection spread throughout her abdomen, a potentially life-threatening condition. Telemedicine might have saved her life.
What is telemedicine?
The formal definition of telemedicine is the electronic exchange of medical information. In essence, telemedicine and digital medicine are the different names given to what is essentially remote healthcare – an encounter between a patient and a physician who are not in the same room. The term telehealth is sometimes used to include non-clinical care, for example, a radiologist remotely interpreting at an x-ray.
Why is telemedicine growing exponentially?
In one word: technology. In 1994, Boston’s Massachusetts General Hospital helped set up a teleradiology system in Saudi Arabia. Proprietary equipment was shipped by air to Riyadh and engineers from the U.S. flew down and spent weeks establishing the system which cost $100,000 and took 5 minutes to transmit a single plain film x-ray. In 1997, just three years later, when MGH set up a similar teleradiology link with a medical center in Turkey, all it took to set up the system was a commercially-available personal computer, a digitizer, and two hours of phone calls between engineers in the two countries.
How is telemedicine useful?
While it has been around for more than three decades now, telemedicine has only recently come into its own, primarily due to lightning fast internet connections and the ubiquitous smartphones. Telemedicine saves both time and money. Patients can transmit heart rate, blood pressure, and other signs and symptoms to a doctor enabling split-second decisions that are sometimes lifesaving. Chronic conditions can be managed more efficiently.
Telemedicine is making better healthcare possible for people living in underserved rural areas. High-resolution video cameras have made it possible for a physician located in a large metropolitan city to read the fine print on the IV bag of a patient in a small community hospital hundreds of miles away and make changes in treatment. A doctor can hear a patient’s cough and see a patient’s swollen eyes from a remote location.
Digital medicine has made it possible for physicians on a medical mission in deep Africa to consult experts in the United States about complicated cases. Hospitals without beds are a reality, serving only to provide consultation to smaller hospitals that don’t have 24×7 on-site physicians.
What are the pros and cons of telemedicine?
Advantages of telemedicine:
- Easy access to healthcare
- Saves time
- Cost effective
- Provides access to specialists
- Billable like regular healthcare services
Disadvantages of telemedicine:
- High upfront cost of telemedicine equipment
- Not cost-effective for smaller healthcare facilities
- Specialized training needed for healthcare personnel
- Impersonal due to absence of face-to-face encounters
- Reduced continuity of care (care from a different physician each time)
What are the legal implications of telemedicine?
While it has been hailed as revolutionary and has grown exponentially in the last decade, telemedicine raises several questions for patients, healthcare providers, insurers, and regulators. In addition to its medical significance, there are many legal implications to telemedicine.
Digital medicine has taken off like a rocket, but healthcare laws, privacy protection regulations, and reimbursement policies are still struggling to keep pace. Telemedicine is considered high-risk by many insurance networks, inviting higher medical liability premiums for physicians who practice it.
In terms of malpractice claims involving telemedicine, the number of lawsuits to date is infinitesimally small. Even when it figures in a case, telemedicine is frequently not the primary focus of the lawsuit. The decision to file a lawsuit for medical negligence is not an easy one, and when telemedicine is involved, it can get even more complicated.
A telemedicine malpractice claim can be complex because of the dearth of case law to rely on. Further complicating the situation is the difficulty in establishing jurisdiction across state lines. The fact that certain states have adopted standards of medical care that are different from the national standards makes the situation even murkier. The inconsistent clinical guidelines for telemedicine propagated by different medical specialty societies have led to more confusion. This lack of consensus is further aggravated by inflexible guidelines that quickly become obsolete as technology advances.
What’s next for Telemedicine?
Telemedicine and medical malpractice is uncharted territory. It is theoretically possible to file a claim under various scenarios of medical negligence such as incorrect interpretation of data, miscommunication or failure to communicate, inadequate monitoring, and incorrect or incomplete treatment. While the legal implications of telemedicine remain complex, there is no doubt that this multi-billion dollar industry will continue to grow at a rapid pace.
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New Mandate Could Prevent Sleepy Trucker Accidents in Columbus
Shared by Scott Elliot Smith, LPA | Smith Law Office
Federal Motor Carrier Safety Regulations (FMCSRs) aim to prevent drowsy driving truck crashes by limiting total hours worked over the course of the day to 14 and by limiting number of hours driven over the course of a day to 11. FMCSRs also mandate a 30 minute break for most truckers after eight hours of driving, and limit driving over a work week to 70 hours after which time a 34 hour rest break is required.
These rules have been met with resistance from the trucking industry, as reported by the New York Times. Truck drivers successfully fought to get congress to change the way the 34 hour rest break rule worked, eliminating a provision requiring two periods of the rest break to fall between 1:00 AM and 5:00 AM. Despite the driver resistance, drivers are expected to obey the rules and to track their hours-on-duty so safety regulators can determine if they did follow these rules.
The problem is, the tracking is done in paper logbooks and some truckers just falsify their logs. With so much resistance in the trucking industry to the hours-on-duty regulations, there is substantial concern the rules limiting drive time are not being followed. There is also concern about employers encouraging truckers to drive when they should not as a result of a nationwide trucker shortage. These concerns are being addressed through a new rule requiring electronic logging.
The new rule was reported on by Reuters. The regulation was created in December 2015, but gave truck drivers two years to comply so the mandate is not actually operational until December of 2017. The new rule requires virtually all truck drivers to put a system into their trucks which electronically logs their drive time. Electronic logging is going to eliminate the possibility of truck drivers failing to follow rules or log their hours correctly.
The Federal Motor Carrier Safety Administration (FMCSA) projects that requiring truckers to use these electronic devices is going to save around 26 lives every single year by preventing drowsy trucking accidents. Stopping sleepy trucks crashes is also projected to stop around 562 injuries. By working more effectively to ensure drivers are in compliance with hours-on-duty rules, the electronic logs will reduce fatigued driving behaviors which Drowsy Driving.org warns can cause effects similar to drunk driving, including delayed reaction times and impaired judgment.
New York Times pointed to many tragic accidents which fatigued truckers had caused, including one fatal crash in which a fatigued truck driver caused 10 deaths after driving for close to 11 hours. Accident investigators determined the 76-year-old truck driver had fallen asleep. Hopefully, this type of tragedy will stop happening once the hours of service are logged electronically and accurately by the new electronic devices which will be required. Regardless of the new mandate, however, it will remain the obligation of truckers to stop and take a rest whenever fatigue begins to impact their driving abilities.
Jury Selection in Medical Malpractice Cases
Shared by Leeseberg & Valentine
In Ohio, every plaintiff is entitled to a trial by jury should they decide to exercise that right. Civil juries are generally composed of 8 individuals who reside in the community where the case is filed. In order for a plaintiff to win a case, at least 6 of those 8 jurors (or three-fourths majority) must vote in the plaintiff's favor. Because of this, the process of selecting a jury, or voir dire, is very important.
The jury selection process is governed by Ohio Civil Rule 47. According to this rule, each party may examine a prospective juror to determine whether he or she is "qualified" to sit on the jury. There are many reasons why a juror may be disqualified, but the primary purpose for this examination is to determine if the prospective juror has any bias that may affect his or her ability to be impartial. If it is determined that a prospective juror is biased or otherwise unqualified, then that prospective juror would be removed for cause.
"In addition to challenges for cause provided by law, each party peremptorily may challenge three prospective jurors." Civ.R. 47(C). This means that a party to a lawsuit has the opportunity to remove three prospective jurors regardless of whether they are qualified. The only restriction to this rule is that peremptory challenges cannot be used in a discriminatory manner (i.e. removing a juror based on race, gender, etc.).
Civ.R. 47(C) also provides that if the interests of multiple litigants are essentially the same, then "each party" shall mean "each side." Importantly, this language can allow for the parties to have a disproportionate number of peremptory challenges and can likewise have a disproportionate amount of influence over the jury. For example, one issue we often have to deal with in medical malpractice cases is when we sue more than one doctor and/or hospital. Assume a lawsuit is filed against two doctors and a hospital. In that case, there are four "parties" to the lawsuit - one plaintiff and three defendants. Should the court determine the three defendants have different interests, then the plaintiff would only have three peremptory challenges whereas the three defendants would have nine. When the jury is comprised of only eight individuals, this provides the defense with a disproportionate amount of control in shaping the jury.
In order to combat this disproportionate amount of influence, we always file a motion to limit the number of peremptory challenges granted to Defendants, or in the alternative, equalize the number of peremptory challenges between each side. This helps ensure that plaintiffs are provided with a level playing field. By way of recent example, our firm recently filed such a motion in a case involving a radiologist who fell below the standard of care in his interpretation of radiological studies of the plaintiff, which lead to his wrongful death. See Pontius v. Ohio Health Corp., C.P. 10CVA-11989, 2014 Ohio Misc. LEXIS 16327 (Ohio Mar. 19, 2014). Plaintiff filed a lawsuit against the radiologist individually, the radiology practice, and the hospital where the imaging took place under the theories of negligence, respondeat superior, and agency by estoppel, respectively. Our argument was that the interests of the three defendants were essentially the same and non-antagonistic despite the fact that the defendants had separate attorneys and filed separate answers. The trial judge ultimately agreed with our argument and ordered that the plaintiff's number of peremptory challenges be equal to the total number of the defendants' peremptory challenges.
Unfortunately, this type of issue is one that is often overlooked by many attorneys. However, this is just one simple step attorneys can take to ensure that their clients can receive a fair trial. Not only does this give plaintiffs the best opportunity to win, it also helps ensure that doctors, hospitals, and other tortfeasors are being held accountable for their actions.
Motorcycle Safety and Autonomous Vehicles
Shared by Rittgers & Rittgers
When a car and a motorcycle collide, the fault often lies with the driver of the automobile. The typical excuse from the driver is that he or she never saw the motorcycle. In other words, driver error is the most likely cause of crashes involving cars and motorcycles. Given that, should motorcyclists be enthusiastic about the possibility of self-driving cars?
The end of motorcycling?
Many motorcycle enthusiasts are justifiably concerned about autonomous vehicle technology. They wonder if the government will push to remove the human element from American roads entirely. Improved driverless cars could be the precursor to an outright ban on motorcycles on public roads. That's an alarming prospect, even if it is likely a problem for the distant future.
The obvious benefits
Proponents of the technology point to the immediate safety benefits of having fewer inattentive drivers cutting them off in traffic or turning in front of them. Autonomous vehicles will use turn signals and stay within their lanes. Driverless cars are incapable of road rage or passive aggressive moves to hinder a motorcyclist's progress. Autonomous vehicles will see motorcycles, or they won't be allowed on the roads. After all, even if motorcycles were banned, autonomous vehicles would have to account for bicyclists and pedestrians.
The growth of motorcycle popularity
There is the tantalizing possibility that driverless technology will actually increase the popularity of motorcycles nationwide. People who are reluctant to ride now may simply be nervous about the huge number of distracted, tired and drunk drivers they see on the roads every day. If cars were removed as a threat, these people might be more willing to ride. Some drivers might even switch to motorcycles because they miss the "feel" of driving when autonomous vehicles become more common.
In the U.S., the idea of an autonomous motorcycle might seem ridiculous. Many riders choose motorcycles for the fun and freedom it offers. Riding enthusiasts may reject any attempt to cede control to a computer. On the other hand, motorcycles may benefit from a limited form of automation. Bikes that can autobrake to avoid collisions or warn riders of unseen curves approaching might gain popularity.
Driverless cars are unlikely to be a common sight anytime soon. The legal hurdles alone are likely to keep autonomous vehicles from gaining a significant market share in the next 10 years. When they do come, however, they have the potential to make motorcycling a much safer and, potentially, more popular way to get around.
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