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OAJ BLOG CENTRAL

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.


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.


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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.


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. 


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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

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.


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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.


Connected Car Technology: Advancing Awareness of Car Accident Hazards

Shared by Rittgers & Rittgers, Attorneys at Law

www.rittgers.com/blog


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

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

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

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

Minimizing Driver Error as a Cause of Car Accidents

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

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


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The Frightening Facts about Maternal Mortality

Shared by Leeseberg & Valentine

www.leesebergvalentine.com/blog


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

Maternal mortality

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

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

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

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

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

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

Postpartum complications

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


Protecting your Child Against Bullying

Shared by the Rinehardt Law Firm

www.rinehardtlawfirm.com/blog


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

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

What Type of Behavior Counts as Bullying? 

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

The School’s Role

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

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

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

Bullying Prevention as a Parent

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

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

Steps to Take if Your Child is Bullied

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

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

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


Pining for Answers in Ohio Tree Law 

Shared by Lardiere McNair, LLC

www.lawyerscolumbusohio.com/blog


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

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

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

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

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

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

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


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