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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.)

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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.”

Family Seeks Justice for Dog Killing in Carroll Township, Ohio

Shared by the Law Firm of Richard M. Lewis

A Carroll Township man allegedly shot and killed a dog belonging to a neighboring family. The dog shooting reportedly occurred over Christmas weekend, just one day after the black Labrador retriever ran away from its owners’ residence on Toussaint North Road in Carroll Township, Ohio.

The family spent Christmas Eve searching the surrounding area for the missing animal. One of the owners of the dog reportedly heard sounds of the family dog barking in the distance, followed by the loud sounds of multiple gunshots. The owners came across paw tracks that led to the suspect’s residence. The family later confronted the suspect at his home, but he reportedly told them that he had not seen the animal. He then slammed the door in their faces.

The family subsequently notified local law enforcement, which dispatched officers to the area to investigate. Police later found the dog in a barrel on the suspect’s property. Carroll Township police officers also spoke with the suspect, who told them that he shot the dog in self-defense. The suspect said that the animal was behaving aggressively and loudly barking at him prior to the violent incident. The suspect reportedly went into his home, got a shotgun and a pair of earmuffs, and then went back outside to shoot the animal. After the shooting, the suspect reportedly tried to conceal the incident by putting the dog’s body into a large barrel. According to law enforcement, the suspect planned to burn the dog inside the barrel and hide all evidence of his act because he “did not want to make enemies” of his neighbors.

Civil Liability for Dog Killing in Carroll Township

Prosecutors in Ottawa County, Ohio are looking into the shooting incident and determining whether criminal charges should be filed against the suspect. Although property owners have a legal right to protect themselves and their property against an aggressive dog, it is against the law to shoot a companion pet without provocation.

Now the family that lost the dog is exploring their legal options as they look to obtain some form of justice for their loss. While authorities consider the possibility of filing charges, the owners of the dog have started an online petition that asks prosecutors to make a bold statement about animal cruelty. The petition declares that no one should be allowed to shoot and kill a dog.

The family is understandably heartbroken about the loss of their dog. They made a point of noting that their dog barked a lot but was never aggressive toward anyone and did not pose any sort of threat to the suspect. In fact, said the dog’s owners, the dog was “scared of his own shadow.”

Regardless of whether criminal charges are filed in the case, the dog’s owners may be able to file a civil lawsuit against the suspect to get damages that include compensation for burial costs, sentimental value of the dog, and emotional distress caused by the dog’s death. The owners already arranged for a burial of the dog on their property.

“Runaway Jury Verdicts” – Are Juries Really Out Of Control?

Shared by Mark B. Smith, LPA

When big corporations and insurance companies take aim at our civil justice system, they often point to the problem of “runaway jury verdicts” and “jackpot justice.” They argue that juries made up of ordinary citizens cannot be trusted to decide issues like whether a hospital or doctor committed malpractice, or who caused a vehicle crash, and what level of compensation would be fair and reasonable for those who have been injured. Oddly enough, these same corporate interests generally have no problem allowing a jury to decide a criminal case, where the very life of the defendant may hang in the balance. But as for holding them responsible when a serious injury or death has resulted from a car crash, trucking accident, nursing home neglect or medical malpractice, juries are simply too liberal and unsophisticated for the job.

Tort Reform

Or at least that’s the argument they make when these corporations spend huge money lobbying state and federal legislatures for more and more “tort reform.” Laws which limit the amount of compensation juries can award, and which place artificial restrictions on the evidence juries can hear, are generally referred to as tort reform (“tort” is legalese for a careless act that causes injury or death). Tort reform laws stack the deck in favor of defendants and their insurance companies. These laws allow them to win the case by persuading courts and juries to decide in their favor, but also make sure that if they lose the judgment will be artificially limited or “capped.” With tort reform, defendants can win as much as ever, but if they lose the injured person or family will only get a limited amount. With the financial resources corporations have to spend on defending cases, and tort reform laws passed to give them artificial protection, the deck is increasingly stacked against people and families who have been injured.

Runaway Juries?

So, having lobbied for and received lots of tort reform laws, why should large corporations and their insurance companies worry about “runaway juries?” Well, it turns out, they don’t. The truth which these “tort reformers” don’t tell the lawmakers is that juries are not out of control. In fact, juries tend to be very conservative both in terms of finding fault (“liability”), and awarding compensation (“damages”). How do we know that’s true? We know because, time after time, when insurance companies are given the choice to present their case to a jury, or just to a judge, they choose a jury! This author himself has seen this over and over when filing lawsuits here in Cincinnati, Ohio and elsewhere in the Midwest. In fact, in one recent case a prominent insurance company forgot to ask for a jury, and then when realizing its mistake went to great lengths to ask the Court to allow it a “do over” so the case could be presented to a jury.

Big corporations and insurance companies have learned that they can have their cake and eat it too. To get the laws they want, they aggressively lobby state and federal legislatures with anecdotal stories of “runaway juries.” But once they’re done lobbying, and they have the legal deck stacked in their favor, they choose to present their cases to those same juries. They know, and have always known, that juries are not out of control. If they were, why would insurance companies work so hard to make sure they get a “jury trial?”


Serious Injury on the Job

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

When a worker sustains a serious injury on the job in Ohio, the obvious place to turn for compensation is the State of Ohio’s Bureau of Workers Compensation the “BWC”).  But did you know that other sources of compensation may be available?  Generally, when a worker is injured as a result of his own carelessness or the negligence of a co-worker while on the job, he/she is limited to compensation from the BWC.  The BWC is an employer-friendly compensation system that is prone to delays, constant battles, and inadequate compensation. There are a number of situations where additional, more favorable compensation can be obtained.

An intentional tort case may be brought against an employer when the employer’s negligence is tantamount to intentionally putting the worker in harm’s way.  This most commonly occurs when an employer removes a safety guard that is designed to prevent injury.

Another potential source of compensation may be available when the workplace injury occurs as a result of negligence by employees of another company.  This scenario arises frequently on construction sites, when one subcontractor engages in a dangerous practice that results in an injury to an employee of another subcontractor.  These so-called “third party actions” are also available when a worker is injured in a car accident, truck crash or other transportation-related accident caused by someone other than a co-worker.

Third party actions may also arise when a worker is injured on another’s property due to a hazard on that property.  For instance, a salesperson who sustains injury while calling on a customer may have a valid third party claim.  These so-called “premises liability claims” have one significant limitation: the “open and obvious” defense.  Ohio courts have held that if you sustain injury on another’s premises, you cannot collect compensation if the injury-causing defect or hazard is open and obvious.  For example, natural accumulations of ice and snow outside of a building would be considered open and obvious.  Likewise, an open hole or a sidewalk crack that can be seen with an unobstructed view would be considered open and obvious.

Premises liability claims in Ohio are winnable only if the injured person can prove that the injury-causing hazard was created by the premises owner or leaseholder, or if the owner or leaseholder knew or should have known of its existence.  Early in my career as an Ohio personal injury attorney, I handled an interesting premises liability case that illustrates the latter “notice requirement” perfectly.  My client was traveling on an interstate when a large dead tree from an adjacent private property fell onto the roof of his car.  The client sustained a serious brain injury as a result of the crash.  With the help of a tree expert from The Ohio State University, I was able to prove that the tree had been dead for several years, such that the property owner knew or should have known that it posed a hazard to passing motorists.

Another third party action may arise when a worker is injured by a crime occurring on the premises where he/she is a worker.  These cases seem to be occurring with greater frequency in our increasingly violent society.  In order to hold a premises owner liable for a criminal assault, rape or murder committed by a third person on their property, the injured party must show that the property owner knew or should have known that the premises were likely to experience criminal activity but failed to take adequate security precautions to protect visitors from serious injury.

Once a BWC claim is filed, the Bureau or a self-insured employer has an automatic right of subrogation to any funds recovered by the employee from a third party.  This subrogation interest includes any future BWC payments that the employee may be entitled to.  However, the BWC subrogation statute contains a provision that allows a setoff for the costs of recovery (i.e., lawyer fees and case expenses) and for “uncompensated” personal injuries such as pain and suffering or wage losses and expenses that are not covered by BWC benefits.  

How to Prove Emotional Distress

Shared by Agee, Clymer, Mitchell & Portman Co., LPA

Plaintiffs who file personal injury or intentional tort claims often ask defendants to pay damages for the infliction of emotional distress. Ohio courts make collecting on such claims difficult by following rules that generally require plaintiffs to give personal accounts of their suffering that are corroborated by witnesses and health care professionals.

An attorney can help a plaintiff who develops new or worsened depression, post-traumatic stress disorder, or another mental or behavioral problem following the negligent, reckless, or intentional actions of another clear these evidentiary hurdles.

Proving the existence and extent of emotional distress requires presenting some combination of five types of evidence to a civil court judge or jury. These are

  • Intense emotional suffering—In layperson’s terms, showing this requires answering the question “How badly did the harmful action mess you up?” Being unable to return to work because of lingering fear or loss of trust in other people counts as intense emotional distress, as does falling into a depression so deep that the plaintiff’s marriage and children suffer.
  • Prolonged suffering—Courts do not set strict time limits on claims of emotional distress, but mental or behavioral problems that last for months or years are the most likely to qualify for compensation.
  • Physical symptoms of emotional distress—Severe weight loss, self-harm, balding, ulcers, shakes, and tics can stem from emotional stress. Presenting evidence of these problems can do much to convince a judge or jury that mental and behavioral problems occurred.
  • Connection between the defendant’s actions and the emotional distress—Did the problems develop or grow more severe after the car accident, physical or personal attack, or problem at the defendant business? The severity of the incident may also be taken into account. For instance, being hit at low speed in a parking lot will generally be considered less likely to trigger emotional distress than will getting trapped in a preventable restaurant fire.
  • Medical documentation—Diagnoses from doctors, reports from social workers, and/or testimony from mental health counselors will help a plaintiff make his or her case for compensation for emotional distress.

Am. H. B. No. 154; Ohio's newly passed Three Foot Bicycle Passing (ORC §4511.27) and “Dead Red” (ORC §4511.132) laws. 

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

Bicycling is the second-most popular outdoor activity; commuter cycling is also on a steady upswing with an alarming increase in bicycle accidents and even deaths.  Ohio has recognized this increase in cycling and accidents and has joined numerous 27 other States in passing the three-foot safe distance passing law.  Many thanks to The Ohio Bicycle Federation, Bike Cleveland, the Ohio House and Senate, and the Governor for the passage of this much-needed state wide bicycle safety law.

Ohio’s three-foot minimum safe distance passing requirement, Ohio Revised Code (ORC) §4511.27 and the “dead red” exception, ORC §4511.132 were signed into law by Governor Kasich on December 19, 2016 and become effective March 19, 2017.

Under newly-enacted ORC §4511.27(A)(1) & (2), a driver of a car passing a cyclist riding in the same direction shall pass to the left at three feet or more, and shall not drive again to the right until the driver's vehicle has safely cleared the cyclist.  (This rule does not apply at intersections controlled by traffic control signals.)  Upon the car’s audible signal, the cyclist being passed must give way to the right in favor of the overtaking car, and the cyclist shall not increase speed until completely passed by the car.  A driver that violates this section is guilty of a minor misdemeanor unless convicted of one or more “predicate motor vehicle or traffic offenses” which include most other traffic offenses. See ORC §4511.27 (B) & §4511.01 (III) (1)

ORC §4511.132 was amended to permit a cyclist to stop and then safely enter an intersection on “dead red”. This occurs when a red light is not tripped to green because of failing to detect a vehicle, i.e. a bicycle. In this instance, a bicyclist may ride through the intersection on red only after making a complete stop, and only if the cyclist can enter the intersection safely and yield to oncoming traffic which has the right of way.  A cyclist better be sure their bike is not detected before entering on red and that it is safe to enter!

The pertinent language of ORC § 4511.132 is as follows:

The driver of a vehicle... who approaches an intersection where traffic is controlled by traffic control signals shall do all of the following, if... the signals are otherwise malfunctioning, including the failure of a vehicle detector to detect the vehicle;

1) Stop at a clearly marked stop line, but if none, stop before entering the crosswalk on the near side of the intersection, or, if none, stop before entering the intersection;

2) Yield the right-of-way to all vehicles... in the intersection or approaching on an intersecting road, if the vehicle... will constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways;

3) Exercise ordinary care while proceeding through the intersection.


Merit Decision: No Police Liability for Injuries to Innocent Bystander During High Speed Chase of Fleeing Felon. Argabrite v. Neer.

Shared by Marianna Brown Bettman

“Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.”

Justice French, Majority opinion.

“Today’s majority ruling will have a chilling effect on policing and will aid criminals in their fight to avoid apprehension.”

Justice Kennedy, Separate Concurrence

“Unless pursuit is necessary for the immediate protection of the public, it should be curtailed so that it does not create immediate risk”

Justice Pfeifer, In dissent

On December 27, 2016, the Supreme Court of Ohio handed down a merit decision in Argabrite v. Neer, Slip Opinion No. 2016-Ohio-8374. In an opinion written by Justice French, the court repudiated an appellate-made “no-proximate-cause” rule, but held the police officers involved in the high speed chase of a fleeing offender were immune from liability for injuries to the innocent bystander plaintiff, and thus were properly granted summary judgment in the case.  Chief Justice O’Connor and Justices O’Donnell and Lanzinger agreed with the opinion in full, with Justice Lanzinger adding a short separate concurrence.  Justice Kennedy concurred in judgment only, with a lengthy separate opinion in support of the “no-proximate-cause” rule.  Justice Pfeifer agreed that the no-proximate-cause rule should be repudiated, and that one officer, Miami Township Sergeant Adkins, was properly granted summary judgment, but dissented as to immunity for the other officers.  Justice O’Neill joined that dissent, and wrote one of his own, disagreeing with the grant of summary judgment to the officers other than Adkins. Whew! No wonder these year-end cases took so long to be released.  This case was argued February 9, 2016.

Case Background

In July 2011, appellant Pamela Argabrite was injured in an accident following a high speed police chase of a fleeing offender named Andrew Barnhart. Barnhart was pursued at various times by three officers from the Miami Township Police Department and at other times by two officers from the Montgomery County Sheriff’s Department. (collectively, “the officers.”) Barnhart collided with Argabrite. Barnhart was killed and Argabrite seriously injured.

Argabrite filed a tort claim against the officers in the Montgomery County Court of Common Pleas, arguing that the officers were not entitled to governmental immunity because their actions were willful, wanton, reckless or malicious. The trial court granted summary judgment to the officers on the no-proximate-cause rule formulated in Lewis v. Bland and adopted by the Second District Court of Appeals in Whitfield v.Dayton, finding that no reasonable juror could find the officers conduct extreme or outrageous.

In a split decision, the Second District affirmed the trial court’s grant of summary judgment to the defendants on the basis of the no-proximate-cause rule.

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

Key Statutes and Precedent

R.C. 2744.03(A) (Political Subdivision Tort Liability and Exceptions)

(In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:

(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and  3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:

(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner)

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711 (willful, wanton, and reckless behavior describe different degrees of culpability; defines each term; also holds the violation of a statute, ordinance, or departmental policy enacted for the safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant to determining the culpability of a course of conduct.)

Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466 (1949), paragraph three of the syllabus (the question of proximate cause is ordinarily one of fact, but, where there is no conflict in the evidence, such question becomes one of law.)

DeWald v. State, 719 P.2d 643 (Wyo.1986) (a police officer should be responsible only for the careful operation of his own car; he should not be liable for the unpredictable actions of the driver being pursued for that would make him an insurer of the wrongful acts of a lawbreaker.)

Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (1994) ( R.C. 2744.03(A)(6)(b) applies to the actions of a law-enforcement officer.)

Continue reading here:

Ohio Supreme Court Cuts Rapists Some Slack – $3,000,000 Worth of Slack

Shared by The Magas Firm

Here’s the state of “tort” law in Ohio – your 15 year old daughter goes to a “counseling” session with her pastor… and is twice raped by her pastor, who is convicted and sent to jail. You sue on the local church and the bigger church which helped create your local church on your daughter’s behalf on a negligent hiring/supervision theory – you go through a very painful jury trial and the jury awards a judgment of $3.6 million…


The rapist’s employer then argues that due to “damage caps” contained in “tort reform” laws [passed 10 years ago when doctors were complaining of malpractice awards] your child is only entitled to collect $500,000.

Today, in a 5-2 decision authored by Justice Judith French, the Ohio Supreme Court decided to protect the pocketbooks of those who rape children [and their employers] and upheld that result in Simpkins v. Grace Brethren Church, giving the rapist and his employer a nice break by knocking some $3,000,000 off what they owe to the rape victim…

Oh… and there’s more…

Here it turns out there were prior incidents of inappropriate behavior by this pastor which were reported to, and ignored by, the hiring church. Rather, the pastor’s immediate superior wagged his heavenly finger at the offender, but failed to report the incidents up the chain or take any action against the pastor…

The thing with these types of incidents is that they are not like car crashes – they don’t generate significant physical injuries, fractures, puncture wounds, stitches and scars… they don’t lead to huge amounts of medical bills – and when a child is raped you don’t see large amount of “wage loss” or other “economic” damages- rather, most of the jury’s compensation is [rightfully] aimed at “pain and suffering” damages – past, present and future – to compensate the child for what she went through.

But… the Ohio legislature in all of its infinite wisdom passed a law in 2005 that says if you are only claiming “pain and suffering” and you don’t have “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or … “permanent physical functional injury that permanently prevents [you] from being able to independently care for self and perform life-sustaining activities” then your damages are “capped” at $350,000.00. While you can be awarded ALL of the economic losses you can prove unless you can pigeon-hole your emotional injuries into the magic words you cannot recover more than $350K for pain and suffering…

After a jury trial, the jury found that Simpkins was entitled to $3,651,378.85 in compensatory damages, which included the following: $1,378.85 for past economic damages, $150,000 for future economic damages, $1,500,000 for past noneconomic damages, and $2,000,000 for future noneconomic damages. The jury awarded Gene Simpkins $75,000 for loss-of-consortium.

Today the Ohio Supreme Court basically threw out that jury award… and issued its own award…

Today the Ohio Supreme Court said the tort reform damage caps that reduced a jury award by $3,000,000 were constitutional when a child is raped and the employer of her rapist is ordered to pay.

Today the Ohio Supreme Court held that the rape victim was only entitled to $150,000 in future “economic” losses and $350,000 in pain and suffering…even though the jury awarded her many times that amount.

Further, here, the victim argued that since she was raped twice in the same room she should be allowed to make two claims and two separate $350,000 caps.

However, Justice Judith French and a majority of the Ohio Supreme Court said [in essence]: “…nope…sorry honey, your two rapes occurred too close together to allow you recover twice…”

Justice French wrote

“The oral and vaginal penetrations in this case occurred within a short period of time, in a confined space, without intervening factors, and there is no evidence that Williams’s separate criminal acts affected Simpkins differently.“

In fact, the evidence, as the court described, was this

The catalyst for appellants’ claims occurred in March 2008 when Williams—then the senior pastor at Sunbury Grace—forced oral and vaginal intercourse with Simpkins, then a 15-year-old parishioner, in his office. Simpkins testified that she was seated in front of Williams’s desk for a counseling session regarding her falling grades and unresolved issues at home regarding her parents’ separation when Williams walked around the desk, put his hand on her shoulder, and told her to suck his penis. After repeatedly refusing, Simpkins eventually complied because she thought it was her only option to get out of the office. Simpkins testified that she then ran for the door, but Williams blocked and shut it. She testified that despite her protests, Williams kissed her, pushed her to the ground, removed her pants, and engaged in forced vaginal intercourse with her. Williams pled guilty to two counts of sexual battery in violation of R.C. 2907.03(A)(12) and was sentenced to two consecutive four-year prison terms.

Continue reading blog here:

When Past and Present Collide- Being Alert of the Dangers of Driving in an Amish Community

Shared by John K. Rinehardt Law Firm

On a dark summer night, a 16-year-old Amish boy is driving his family’s buggy on a narrow roadway.  The buggy does not have taillights or turn signals.  There are no street lights on the rural road.  The boy directs the horse pulling the buggy to turn into a driveway.  The boy does not look for oncoming traffic and turns directly into the path of an oncoming motorcycle.  The motorcycle crashes into the side of the buggy.  The driver of the motorcycle is thrown from the bike and lands in a ditch.  Lying in the wreckage, both the Amish boy and the driver of the motorcycle are seriously injured.  The horse is killed.  Unfortunately, scenarios like this one are all too common on rural roadways in Ohio.  Ohio law does not require buggies to have headlights, taillights or turn signals.  The lack of regulations results in an average of 120 reported buggies accidents per year.

The Danger:

Amish people in Ohio do not have to follow the same driving regulations and laws as people with cars.  Children as young as 8 are on the road operating buggies.  Amish do not have to take driving tests, get a driver's license, or purchase vehicle insurance.  They do not use seat belts or even car seats for infants.  The lack of guidelines is a safety concern for the Amish and for everyone living in communities that coincide with Amish people.

Normal speeds for horse-drawn buggies range between five and eight miles per hour. Horse-drawn vehicles may be even slower when pulling large farm equipment or when crossing intersections.  In addition, horses become tired causing them to move more slowly.  The vision of the driver of the horse-drawn vehicle is restricted by the lack of windows and mirrors. When pulling large loads of hay or other equipment, drivers may not be able to see cars behind them.  


  • Statistics show that more than 65 percent of all traffic deaths occur in rural areas and 50 percent of those deaths are on country roads. Ohio reports, on average, more than 120 buggy accidents a year.
  • Ohio and Pennsylvania report a rough average of 60 major crashes involving horses and buggies a year over the past decade.
  • An Ohio Department of Transportation review found that injuries occurred in roughly half of those accidents, with fatalities in about 1 percent of them, a rate that is slightly higher than accidents in which both vehicles are motorized.
  • That review also revealed that the typical accident involving a horse and buggy occurs when a motorist rear-ends the buggy after misjudging just how slow the horse-drawn vehicle is traveling.

Avoiding a Collision

Even the fastest horse is slower than your car.  Therefore, car drivers need to be extra cautious when passing horse-drawn farm equipment. To avoid collisions, you should anticipate left hand turns made by horse-drawn vehicles into fields and driveways.

STAY BACK!  Leave some space between your vehicle and a buggy stopped at a stop sign or light.  Buggies may back up a few feet after coming to a complete stop.  A good rule of thumb is to stop your vehicle far enough back so that you can see where the rear wheels of the buggy touch the road.  

A slow-moving vehicle sign should be mounted on all farm machinery, including road construction equipment and animal-drawn vehicles. The sign should signal motor vehicle drivers to slow down. Vehicles displaying the slow-moving vehicle sign are prohibited by law to go faster than 25 mph.

When approaching and passing a horse-drawn vehicle, remember that horses are unpredictable and even the most road-safe horse can spook at a fast-moving motor vehicle.  Only pass when legal and safe.  Be sure to slow down and give buggies and horse-drawn equipment plenty of room when passing.

Sharing the Road:

The Amish have just as much right to be on the roads as anyone else. The question is how to keep everyone safe.

A safety council made up of Plain residents from Amish Country in Pennsylvania meets several times a year.  In 2007, the safety council approached county officials about creating a Pennsylvania driver’s manual for horse and buggy.  The goal of the manual is to educate buggy drivers about safety concerns, and for other drivers to gain some perspective about sharing the road with buggies.

With input from the Plain community, the manual is written in a conversational tone and emphasizes a Christian approach to driving.  It stresses the importance of buggy lighting, courtesy and following the rules of the road.  It includes instructions for handling and hitching a horse and emphasizes having a good harness and using reflectors and child safety seats.

Changing the Rules:

While the manual is a great resource, the problem is that it is filled with recommendations, not requirements.  The best way to ensure safety, is to legislate changes to the rules that apply to horse drawn buggies. 

Some basic rules that would improve safety include minimum age requirements for buggy drivers, mandatory reflective material for horses (in case they break from the buggy), a driver’s test for buggy operators, an insurance requirement, and license plates for the buggies.

Call your state legislator to urge him or her to adopt these regulations. 

Am I protected if a crash occurs?

Because Amish buggies are classified as non-motorized vehicles, their owners are not required to carry any insurance.  You might expect that if you are involved in a crash caused by an Amish buggy, you will be protected by your Uninsured Motorist (UIM) insurance.  However, most UIM policies contain an exclusion for Amish buggies.  If you live in a community that shares the road with Amish buggies, ask your insurance agent if you are covered. 




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

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Keywords: Apology Statute, Statement of Fault, False Diagnoses, Alzheimer's, Divorce, Tax Return, Family Law, Medical Malpractice, Doctors"Dead in Bed," Social Media, Civil Liability, Dog Killing, Runaway Jury Verdicts, Workers' Compensation, Job InjuryEmotional DistressBike Laws, "Dead Red," Three Foot Bicycle Passing, Police Liability, Sexual AbuseOhio Supreme Court, Personal Injury, Amish CommunityTort Reform


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