Member Login
Forgot Password?
Upcoming Events

Understanding the Fair Debt Collection Practices Act


[ Details ]


Litigating Elder Abuse/Neglect in Assisted Living Facilities
[ Details ]


List Server Tools and Tips Webinar
[ Details ]



Advocates Circle Firms

Arthur O'Neil Mertz Michel & Brown Co., LPA


Barkan Meizlish
Handelman Goodin DeRose
Wentz, LLP


Bordas & Bordas, PLLC


Caravona & Berg, LLC


Leizerman & Associates, LLC


Elk & Elk


Geiser, Bowman & McLafferty, LLC


The Gervelis Law Firm


Kisling Nestico & Redick


Kitrick, Lewis & Harris Co.,. LPA


Landskroner, Grieco & Merriman, LLC


Meyer Wilson Co., LPA


Murray & Murray Co., LPA


Nager Romaine &
Schneiberg Co., LPA


Nurenberg, Paris, Heller & McCarthy Co., LPA


O'Connor Acciani & Levy, LPA


Petersen & Petersen


Plevin & Gallucci Co., LPA


Rourke & Blumenthal


Slater & Zurz, LLP


Scott Elliott Smith, LPA


Spangenberg, Shibley & Liber


Robert J. Wagoner, Co., LLC


Tzangas Plakas Mannos Ltd.





The Most Common Commercial Truck Accident Causes

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

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

Other Common Truck Accident Causes

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

Critical events assigned to commercial trucks:

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

Critical reason categories assigned to commercial trucks:

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

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

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

Ohio Commercial Truck Accident Statistics

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

Florida Commercial Truck Accident Statistics

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

Study Looks at Low Reporting of Medical Errors Among Anesthesiologists

Shared by McKeen & Associates, PC

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

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

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

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

Premature Babies’ New Ray of Hope

Shared by The Eisen Law Firm

A Promising Future for Premature Babies     

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

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

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

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

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


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

Shared by Marianna Brown Bettman


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

Case Background

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

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

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

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

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

Votes to Accept the Case

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

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


Continue reading blog post here:

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

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

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

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

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

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

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

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

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

Trucking Company Liability for a Truck Accident

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

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

Trucking Company Liability

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

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

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

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

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


Medical Device Recalls: Are you at Risk?

Shared by Leeseberg & Valentine

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

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

What happens next?

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

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

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

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

Who is liable for your pain and suffering?

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

Bicycle Night Riding Safety Advisory

Kenneth J Knabe | Knabe, Brown & Szaller

My Motto is: “Front and back lights are LEGALLY right at night!” Make sure you have illuminated front and rear lights as required by Ohio law from sunset until sunrise. Ohio Rev.Code §4511.56 (2006).

“Conspicuity” means being seen!  Reflective, contrasting clothing at night are helpful for night riding cyclists that need to be seen and not hit. Whenever possible, a cyclist should make eye contact with the driver to make sure the driver actually sees them.

As a “vehicle,” a cyclist must obey all traffic rules applicable to vehicles. Ohio Rev. Code §4501.01(A) (2016) and 4511.01(A) (2016). FYI: cyclists that follow traffic laws are in 75-80% fewer accidents. Also, cyclists following the traffic laws will have the right of way just like any other car or truck. A cyclist must stop at red lights and stop signs. Ohio Rev. Code §4511.43 (2004); yield to pedestrians on a sidewalk. Ohio Rev. Code §4511.441 (2004); and ride in the direction of road traffic. Ohio Rev. Code §4511.25(A) and (C) (2006).

A cyclist must ride as near to the right side of the roadway as practicable and exercise due care when passing. However, a cyclist is not required to ride at the right edge of the roadway when it is unreasonable or unsafe because of surface objects, hazards or if the lane is so narrow that a car cannot safely pass the cyclist. Ohio Rev. Code §4511.55(A) and (C) (2006).

Predictability is another component for keeping a cyclist safe. A cyclist should avoid weaving or sudden movements and should announce their intentions regarding movement with these mandated hand signals. Ohio Rev. Code §4511.40 (2004).

No points can be assessed to a cyclist who violates traffic laws unless the cyclist is riding under the influence. Ohio Rev. Code §4511.52 (2006). Often times, a police officer may inadvertently issue a traffic citation to a cyclist and fail to delineate it as a no point violation. Be aware of this little known law and be careful on advising waivers of traffic tickets issued to cyclists.

Ohio law does not mandate the wearing of a helmet, but some cities require helmets, especially for minors. Though it is generally legal for an adult to operate a bicycle without wearing a helmet, two-thirds or more of fatally injured bicyclists were not wearing helmets


Oral Argument Preview: Can a Doctor’s Admission of Fault During An Apology Be Used in Court?

Shared by Marianna Brown Bettman

On April 6, 2017, the Supreme Court of Ohio will hear oral argument in the case of Dennis Stewart, Individually and as the Administrator of the Estate of Michelle Stewart, Deceased v. Rodney E. Vivian, M.D., et al., 2016-1013. This certified-conflict case presents the question of whether the Ohio apology statute also makes statements of fault, error, or liability made by a health care provider inadmissible at trial.  This case will be argued at Morgan High School in Morgan County as part of the court’s off-site program.

Certified Question

“Whether a health care provider’s statements of fault or statements admitting liability made during the course of apologizing or commiserating with a patient or the patient’s family are prohibited from admission of evidence in a civil action under Ohio’s apology statute, R.C. 2317.43.”

Certified Conflict Case

Davis v. Wooster Orthopaedics & Sports Medicine, Inc. 2011-Ohio-3199 (9th Dist.)

R.C. 2317.43. was intended to protect pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, without excluding from trial a medical professional’s admission of fault for a claimed injury. The Davis case was originally accepted for review by the Supreme Court of Ohio, but was settled before it was argued.

Case Background

Appellant Dennis Stewart (“Stewart”) filed a medical malpractice and wrongful death claim against Appellee Dr. Rodney Vivian and Mercy Hospital Clermont (”Mercy”) after Stewart’s wife, Michelle Stewart, committed suicide by hanging. Michelle’s suicide occurred while she was an inpatient at the psychiatric unit of Mercy under Dr. Vivian’s care. The claim against Mercy was settled and is not involved in this appeal.

Michelle Stewart had been admitted to Mercy for treatment by Dr. Vivian just hours after an earlier suicide attempt. Stewart alleged that Dr. Vivian was negligent in the assessment, care and treatment of his wife while she was on a 72-hour psychiatric hold.  Stewart contends his wife was actively suicidal and required closer observation than she received.  Dr. Vivian disputed this.

Dr. Vivian ordered that hospital staff check on Michelle every 15 minutes throughout the day (as opposed to more frequent or constant observation). During one of those unobserved periods of time, Michelle hanged herself from the bathroom door. Stewart discovered his wife’s body when he arrived for visiting hours. Michelle was taken down and transferred to the ICU, where she lingered for a few days before dying.

The second day after Michelle was moved to the ICU, her family was gathered beside her bed and Dr. Vivian approached the family. The actual content of what was said is contested, but at trial, Stewart attempted to admit statements that Dr. Vivian said he knew Michelle would try to commit suicide again, which Stewart argued was an admission of fault. Dr. Vivian testified that he did not remember exactly what he said, but that his intent was to apologize to the family about what had happened. His best recollection was that he told the family he was sorry about what had happened, but that when someone yelled at him that it was his fault, he said he was sorry and then he left.  Family members did not think Dr. Vivian had apologized. So, the parties disagree about whether Dr. Vivian admitted to fault, above and beyond the admission contained within a traditional, “I’m sorry,” and if so, whether such a statement is admissible under Ohio’s apology statute.

Dr. Vivian filed a motion in limine to keep his statements out of the trial. The trial judge initially acknowledged that Dr. Vivian’s statements in the ICU didn’t literally fall under the definition of any of the words in the apology statute, but concluded that an apology can include a statement of fault. The court ultimately determined that Dr. Vivian’s statements to the family were an ineffective attempt at commiseration, granted the motion in limine, and excluded the statements.  The jury found in favor of Dr. Vivian, and post trial motions were denied. Stewart appealed.

On appeal, in an opinion written by Judge Hendrickson and joined by Judge Piper, the Twelfth District agreed with the Davis court that the term “apology” in R.C. 2317.43 is ambiguous, but disagreed with the Davis court that  “the [legislature’s] intent was to protect pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.” The Twelfth District reviewed the use of the word “apology” separately from the other terms in the statute, and concluded that the legislature intended to exclude from evidence all statements of apology, including statements of fault.  Judge Michael Powell concurred separately, disagreeing with the standard of review for determining whether the contested statements should be excluded.

Votes to Accept the Case

Yes: Chief Justice O’Connor; Justices Pfeifer, Lanzinger, Kennedy, and O’Neill.

No: Justices O’Donnell and French.

Key Statutes and Precedent

R.C. 2317.43  (Ohio Apology Statute)(In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a healthcare provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.)

Estate of Johnson v. Randall Smith, Inc., 2013-Ohio-1507 (Statement of comfort by physician to distressed patient is precisely the type of evidence that Ohio’s apology statute was designed to exclude in a medical malpractice case.)

Continue reading blog here:



The New Normal

Shared by FindLaw

Face it: the legal landscape is changing, and it isn’t going back. Welcome to the “new normal.” There are higher expectations from clients, competition and the economy that can’t be ignored. This means running a law firm is more difficult than ever. You have to balance time between clients, business practices and marketing, all while fending off the firm right down the road offering similar services. It’s understandable that the landscape may look bleak. But luckily there are new technologies and services that can make running your firm a little easier.

To remain relevant your firm needs to identify and streamline all areas of business—growth, practice and management—or risk falling further behind. See where your firm stacks up by taking the “new normal” quiz, then consider these insights.

Grow Your Firm

In just a short time, online legal marketing has matured beyond a basic website and the “set it and forget it” approach. Today’s law firm needs to diligently manage their digital marketing to keep up in a fast-paced and competitive marketplace. Consumers get to know you better on social media, learn about your expertise on blogs and use online reviews to better understand the client experience. 

Consumers are moving online, so to keep up with the amount of leads you need to maintain a successful practice, it’s a good idea to do the same. That definitely means a website that’s mobile-friendly. But digital marketing is also about placement on well traveled legal directories, SEO optimized content and PPC ads. 

Prospects are looking for an attorney they can connect with and who understands their predicament. This means they want to know the authentic, human version of your firm. Use today’s tools such as social media to promote your brand in a personal way that shows consumers an attorney they can trust and relate to, not one that sits in an ivory tower.

Practice Effectively

Every day attorneys say that the modern client wants more for less. On top of that, regulations are changing, making it even more difficult for a firm to be profitable. Practicing more efficiently is essential to surviving the squeeze this new model puts on law firms. 

Adopting new technology means having the information you need to start a task without having to search forever to find it. It’s the knowledge that what you have is up to date and accurate. And it’s the tools you need to get the job done right, get it done faster and get it done more quickly.

Manage Efficiently

A law firm’s time is often dominated by business practices. Administrative work like client intake, billing and legal writing take time away from valuable billable hours, costing your firm both time and money. Luckily there are new technologies that allow you to stay on top of these tasks. 

Take the Quiz

Don’t know how your firm stacks up amongst the many? Thomson Reuters launched an interactive quiz to help you measure what you’re doing well and where opportunities may have been overlooked. Take the quiz, explore the possibilities and set your firm up for success.

False Alzheimer's Diagnoses Devastate Patients

Shared by The Heck Law Offices, Ltd.

Getting the diagnosis of Alzheimer's disease is a crushing blow to patients and their families. The incurable disease that ravages fine minds and alters personalities is universally fatal, but not before it reduces patients to bed-ridden shells of who they once were.

As bad as the diagnosis is, it is a medical reality that many must come to accept, or at least endure. But what of those who are falsely diagnosed with this onerous disease?

That is the situation facing at least 50 residents in the Toledo area who were patients of a doctor at the Toledo Clinic Cognitive Center, an offshoot of the Toledo Clinic. Open for only the year between 2015 and 2016, the woman who doled out these devastating diagnoses allegedly had no medical license or training that qualified her to do so.

When a doctor is not really a physician

The woman's use of "Doctor" before her name came not from a medical degree but the Ph.D. she earned in physiological science. She was never authorized to write orders for medical testing, so her husband - a partner and licensed physician at the Toledo Clinic - signed the orders himself. His name was also found on some invoices as the physician who referred these patients for Alzheimer's testing, according to lawsuits filed by the misdiagnosed patients.

Each lawsuit seeks in excess of a million dollars for damages. Counsel for the defense, while denying many allegations in the pleadings, has not contested that the treating doctor was unlicensed.

Also named as defendant in the suit by former patients is the Toledo Clinic. Plaintiffs claim that those in charge at the medical center should have known the woman had no credentials or training to diagnose and treat patients. The chief administrative officer of the medical center declined to comment.

The terrible cost of false diagnoses

As a result of receiving a false diagnosis of Alzheimer's disease, at least one patient took his own life. Others admit to contemplating - even laying the groundwork for - their own suicides. One plaintiff and former patient described filling up a bottle with pills and writing his future self a note to take when he could no longer recall his kids' names.

Others describe crushing depression and devastated family members struggling to come to terms with misdiagnoses fueled by unfettered greed, as alleged by examples of overbilling and other financial irregularities.

Filing a Tax Return During or After a Divorce

Shared by Rittgers & Rittgers

Tax time is quickly approaching and if you are going through a divorce, you may have some questions about how to file your taxes.

One of the first questions people ask is how to file. Pursuant to the Internal Revenue Code, if you are still married on December 31st, you have to file as married that year, whether it be jointly or married filing separately. If you are not married on December 31st, you cannot file as married. Don't forget to ask your accountant about whether you are eligible to file as Head of Household. This may be addressed in your Separation Agreement or Divorce Decree, so make sure you know what your court order says before discussing this issue with your accountant. 

Another question that is frequently asked is about claiming the children as dependents while a divorce is pending or contemplated. During the pendency of a divorce, this is an issue that needs to be discussed by the parties and counsel to determine how to file. Oftentimes, it is best to discuss with your accountant all of the ways that you can file (jointly, separately, and the distribution of the children as exemptions) to determine which method is the most beneficial for the family, meaning which will result in the highest refund. The parties generally reach an agreement, or the court can weigh in, about what to do with the money. Some options may be that the refund is divided, used to pay down marital debt, or held in an escrow account until everyone agrees or the court holds a final trial.

The issue of claiming the children as tax dependents is something that is either negotiated and agreed upon in the divorce or dissolution process or the court decides. Under the Ohio statutes, the exemption goes to the residential parent unless the court determines that it is in the children's best interest for the non-residential parent to claim one or more of the children. The court will look at factors such as the potential of the reduction of taxable income for either parent, the ability to claim the child tax credit, and the compliance of the non-residential parent in the payment of child support. If the non-residential parent is not substantially current (usually defined as no more than $100 owed in child support at the end of the year), they are generally not eligible to claim the child or children even if it is their year under the final order. If divorced, the first thing that you should do in determining whether you should claim the children is to look at your divorce decree or separation agreement. If it is your year to claim one of the children, and your ex-spouse claims that child first, you will not be able to file electronically, as it will flag the social security number of that child. However, you should be able to file through the mail with a copy of the necessary court order.

Lastly, you should consider and discuss with your accountant whether you may claim deductions based on the payment of spousal support or the payment of attorney fees. If you are paying spousal support in Ohio or maintenance in Kentucky, you need to discuss with your accountant the tax deductibility of these payments. On the other hand, if you are receiving spousal support or maintenance payments, you need to discuss setting aside money or paying estimated taxes on this support. Unlike receiving W-2 income, taxes are not coming out of the income as it is paid and received; and therefore, you will owe taxes at the end of the year on the alimony payments that you receive.

Additionally, the IRS allows a deduction for attorney fees incurred in the process of attempting to produce or collect taxable income. As described above, spousal support/maintenance is taxable income. Therefore, if you are in the process of attempting to get a spousal support award, you may be able to deduct a portion of your attorney fees. You should discuss this with your accountant in enough time to get the necessary paperwork from your attorney about fees incurred during that tax year.


Which Doctors Commit Medical Malpractice?

Shared by Michael Hill | Eadie/Hill Trial Lawers

Shocking statistic: fewer that 2% of physicians and responsible for ALL medical malpractice claims.

A report released by the Journal of Patient Safety in January 2017 showed that the majority of all medical malpractice suits were the result of the unreasonable actions of a few physicians. The medical investigators reached the conclusion that a small outlier of physicians had a disproportionately negative impact on the safety of all patients.


History of Small Groups of Dangerous Doctors

Over the past 25 years, there have been $83 billion in medical malpractice lawsuit payouts. The unreasonable actions of 1.8% of all physicians were responsible for half of that amount. Those physicians, however, were rarely disciplined for their conduct. (Learn more about how Ohio medical malpractice lawsuits work.)

The data demonstrates that only 12.3% of physicians had any action taken against their medical license. And only 6.3% had any action taken against their clinical privileges to provide care. That includes care at medical centers and hospitals.


Prior studies reached similar results. In 2016, The New England Journal of Medicine published a study that found that 1% of all physicians accounted for 32% of all malpractice claims over the past 10 years. The researchers determined that a small number of physicians had a negative impact on patient care.


Both studies found that doctors who paid multiple medical malpractice claims were substantially more likely to have additional medical malpractice claims in the future. The researchers also found that “there is evidence that most adverse events result from individual errors and that most malpractice suits reflect both patient injury and error.”

This reflects what many already know, that payouts from medical malpractice require not only poor medical care, but an injury caused by that poor care. That’s true whether the malpractice results in a permanent injury, or a wrongful death.

Ohio Laws to Protect the Dangerous Doctors who Commit Medical Malpractice

All of this comes at a time when many politicians across the country are seeking to restrict or outright prohibit patients from bringing medical malpractice lawsuits through what is commonly referred to as “tort reform.”

Typical tort reform agenda items include limiting the time period for when a patient can bring a lawsuit, placing an arbitrary cap on the amount of money that can be awarded to an injured patient, and requiring injured patients to submit their claims to physician panels.

According to the Washington Post, Republican lawmakers vow to make tort reform (sometimes also referred to as “medical liability reform”) a top priority of the overhaul of the Affordable Care Act. Healthcare industry lobbyists and politicians claim that there is “lawsuit abuse,” frivolous lawsuits, and physicians are running needless tests to avoid malpractice claims.

The Real Problem Isn’t Lawsuits

The medical researchers who actually study the issue—not lobbyists and elected officials—found that there are actually “clusters” of physicians who are likely to pay most claims. For example, 25% of all claims were paid by 0.5% of doctors while 50% of all claims were paid by 1.8% of physicians.

Yet, almost no discipline was taken against these physicians which jeopardizes the safety of the public, fails to discourage poor care, and almost guarantees that these physicians will have additional claims against them.

This data shows that almost nothing is being done to address this subset of wayward doctors.

The problem is not too many patients bringing lawsuits. The problem is that a few physicians are responsible for too many lawsuits. Preventing patients from bringing lawsuits under these circumstances does not solve any problems.

This is equivalent to lawmakers making it more difficult to prosecute crimes because a small number of individuals commit a majority of crimes. Stupid.

“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

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. 

Financial considerations 

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 Audience

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?

The Specificity

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.

The Price

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.”




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

Blog Policies

Recent Posts:
• The Most Common Commercial Truck Accident Causes
• Study Looks at Low Reporting of Medical Errors Among Anesthesiologists
Premature Babies' New Ray of Hope
• Oral Argument Preview: Proper Joinder for Respondeat Superior Liability in Medical Claim
• Do I have 3 Days to Cancel the Transaction in Ohio?

Keywords: Commercial TruckingAnesthesiologists, Medical Error, Premature Babies, Oral Argument, Respondeat Superior Liability, Truth in Lending Act, Ohio Lemon Laws, Consumer, Prepaid Entertainment ContractsLiability, Truck Accident, Medical Device Recalls, Bicycle, Night Riding, Apology Statute, Statement of Fault, False Diagnoses, legal landscapeAlzheimer's, Divorce, Tax Return, Family Law, Medical Malpractice, Doctors"Dead in Bed," Social Media


Please submit all blog post entries to







Our Friends of OAJ Sponsors