Practice Areas

• Auto, Truck & Motorcycle Accidents
• Medical Malpractice
• Nursing Home Neglect
• Employment Law
• Injuries from Dog Attacks

Auto, Truck & Motorcycle Accidents

• Most Traffic Fatalities Occur on Rural Roads
  Oct 07, 2009

  In 2008, 56% of the country's 37,261 traffic deaths occurred on rural roads even though there are more crashes in urban areas.  Traffic deaths decreased last year in both urban and rural settings.  High gasoline prices kept more people at home and reduced the number of accidents.
  
  The reasons for more rural traffic deaths seems to be threefold.  People drive faster on rural roads.  The roads themselves are not as well-engineered, and medical response time is much slower outside of cities.
  
  Some states are taking action to make their country roads safer.   These improvements include the addition of rumble strips on both the shoulders and centerline of some roads.  Montana has even engineered "over crosses" and "undercrosses" for deer, elk and bear on one highway.  Many states continue to campaign for seat belt usage, particularly in rural areas. - 1 - 10

• Second Lorain County Resident Dies in Motorcycle Crash This Weekend
  Jun 22, 2009

  Another Lorain County resident was killed on Sunday when his motorcycle was involved in a collision with another vehicle at State Route 58 and Walnut Drive in Amherst on Sunday, June 21, 2009.  This is an occurrence that happens far too frequently.  Without any sheet metal to protect them, motorcyclists are all too  vulnerable when involved in a crash. All drivers need to be vigilant and be on the lookout for motorcyclists, bicyclists, and pedestrians. - 2 - 10

Medical Malpractice

• Damage Caps in Medical Malpractice Laws Challenged
  Sep 29, 2009

  Maryland and Georgia, like many states, have enacted laws that restrict a person's right to recover non-economic losses in medical malpractice claims. Supreme court judges in these two states will decide whether limits on non-economic damages will be struck down.  In Georgia, the court will decide whether the $350,000 cap violates the state constitution.  In Maryland, the court will decide whether the caps will only apply in cases resolved through arbitration.
  
  In Ohio, medical malpractice claims are subject to caps of $250,000 or three times the plaintiff's economic damages subject to a maximum of $350,000.   The cap is increased to $500,000 for injuries involving substantial physical deformity, loss of use of a limb, or loss of a bodily injury system.  The Ohio limits are found at Ohio Revised Code Section 2323.43. - 3 - 10

• Hospitals Still Not Reporting Serious Errors
  Aug 12, 2009

  NATIONWIDE REPORTING SYSTEM OF SERIOUS MEDICAL ERRORS STILL NOT IN PLACE
  
  In November of 1999, 22 leading medical experts wrote a report called "To Err Is Human" and called upon the medical world to develop a nationwide reporting system of serious medical errors.  These experts agreed that procedures could be put in place at hospitals to minimize the chance for serious medical errors.  They also agreed that it was advisable for the public to know about unsafe conditions at their hospitals.
  
  Ten years later, these recommendations have largely been ignored.  The American Medical Association and the American Hospital Association vigorously opposed an attempt by President Bill Clinto to require hospitals to make public serious errors that occurred in their institutions.  These two groups launched a mult-million dollar campaign against this proposal.
  
  Instead, nothing much has changed.  It is estimated that death from preventable medical injuries and infections is close to 200,000 a year.
  
  To find out more about deadly mistakes in our hospitals, click here.

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• Study Finds That Doctors Do Not Always Report Significant Test Findings
  Jun 23, 2009

  Many of us believe that if a medical test is abnormal that the doctor will notify us promptly once the results reach our doctor's office.  Unfortunately, that is not always the case.
  
  A recent study led by Dr. Lawrence Casalino of Weill Cornell Medical College found that abnormal lab or x-ray results were not always communicated to the patient.   Approximately seven percent of the abnormal results were not.   Practices that used electronic medical records were more likely to report adverse results than those that only had paper documents.  Medical practices that used a combination of paper and computer records were the least likely to report significant abnormal results.
  
  The study underscores how important it is for a primary care physician to have a definite protocol for this situation. The  protocol should make sure that the results are directed  to the responsible doctor, the doctor notes that he or she has reviewed the result, and the office staff documents that the results have been communicated to the patient.  As a patient, if you do not hear back from the doctor about test results, do not assume that the test results were negative.  If you have not heard within a week,  
  always call the office and find out for yourself.
  
  - 5 - 10

Nursing Home Neglect

• Mandatory Arbitration Provisions Are Coming Under Attack
  Oct 12, 2009

  Many nursing homes require residents to submit all disputes to arbitration.  When the resident seeks admission to the facility, the nursing home has the individual sign a paper in which the would-be resident must give up the right to file a lawsuit and is required to submit any claim to an arbitration proceeding. The same is also true of many credit card companies.  Because the credit card companies pay and hire the arbitrators, decisions have overwhelmingly favored the credit card and finance companies. One arbitration company, The National Arbitration Form, was found to have ruled in favor of the debt-collection agencies that hired it in 94% of the arbitration decisions.  As a result, state officials in Minnesota accused it of deceptive business practices and serving as a pawn for the business interests.
  
  These abuses have led Congress to consider The Arbitration Fairness Act of 2009, laws that would prohibit companies from forcing prospetive customers to waive their legal rights and agree to arbitration.  This bill is under consideration and there is heavy pressure to get it passed this year.
  
  Arbitration works best in commercial settings where both parties voluntarily agree to arbitration and both concur on the choice of the arbitrator.  This is not the case in credit card applications or nursing home admissions documents where the individual has no choice but to agree to mandatory arbitration or not enter into the contract and be admitted into the facility. - 6 - 10

• Ohio Supreme Court Dilutes Rights of Nursing Home Patients
  Jul 14, 2009

  The Ohio Supreme Court ruled that an arbitration agreement between the nursing home and a resident that took away many of the resident’s rights was not invalid as a matter of public policy. By signing the arbitration agreement, the resident lost her right to a jury trial, the right to attorney fees, and punitive damages. The Ohio Supreme Court ruled that these provisions are enforceable if they are "voluntarily" entered into and were not pre-conditions to the nursing home’s admission process. 

  The 95 year old resident was brought by ambulance to the nursing home to be admitted. She was given 29 pages of documents to review and had to sign in 11 different places. The arbitration agreement itself stated that it was voluntary. It indicated that arbitration would save time and expense, but failed to point out the drawbacks of arbitration, i.e. difficulties in forcing the other party to turn over documents prior to arbitration, limited appellate review, and the expense of arbitrators.

  However, a majority of the Ohio Supreme Court justices found the agreement to be valid because it was not both procedurally and substantively unconscionable. To be procedurally unconscionable, the residents would have to show that due to their age, education, intelligence, business knowledge, mental status, and emotional condition that they were disadvantaged in fully understanding the agreement or believing that they had no choice but to sign the agreement. To be substantively unconscionable, the agreement must be one-sided and favoring the nursing home over the resident. 

  The resident had died and could not testify regarding the factors surrounding her signing the document. The only fact on the record was that the resident was 95 years old when she signed. This was not enough to show that the agreement was procedurally unconscionable. As for substantive unconscionability, the court pointed out that both sides gave up their rights to a jury trial as well as the right to recover attorney fees or expenses from the other party. 

  Justice Pfeifer was the lone dissenting justice. Justice Pfeifer scoffed at the majority’s reasoning, and pointed out that this decision reduced to rubble, the Ohio Nursing Home Patients’ Bill of Rights (R.C. 3721.10, et. seq.) enacted by the Ohio General Assembly to protect nursing home residents from all types of abuses and unsafe conditions. This statute allowed nursing home residents to receive punitive damages and attorney fees when enforcing their rights. Justice Pfeifer pointed out how vulnerable the residents were and how the Ohio General Assembly recognized that they were in need of special protection. Although arbitration makes sense between two business entities, it should be outlawed in the nursing home environment where one side does not understand the implications of the agreement and would not have the abilities to negotiate another result. 

  Justice Pfeifer ended his dissenting opinion with these caustic remarks:

   "[I]f you squint just so, you can make out what the majority identifies today: the right of the elderly to be "taken in" by nursing homes. This court’s corollary right for nursing homes is the right to say, "You signed it. Live with it! Ohio Nursing Home Patients’ Bill of Rights? You waived it! Your fundamental constitutional rights? You waived them too! And don’t forget to remind your son that we need next month’s check for $5,500 by the first."

   To read the enter decision, click here.

   

   

   

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Employment Law

• U.S. Supreme Court Adds Barrier to Age Discrimination Cases
  Jun 19, 2009

  Age discrimination cases now have a different standard than gender or race discrimination cases.  The U.S. Supreme Court ruled in a 5-4 decision that in order to recover, an employee must show that absent the age bias, the employer would not have taken the adverse action against the employee.  Before this,  employees just needed to show that age along with other factors was responsible for the adverse employment situation. 
  
  In the case before the U.S. Supreme Court, the employee (age 54) claimed that because of age and other factors, he had been demoted  from his post as a claims administration director to the position of a claims project coordinator.  This change resulted in a decrease in his salary and stock options.  Because the employee could not show that age was the overriding reason for the demotion, he could not recover.
  
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Unsafe Premises

• Property Owner Escapes Liability From Building Code Violations When Condition Is Open And Obvious
  Jul 30, 2009

  In another disturbing application of the "open and obvious" doctrine, the Ohio Supreme Court ruled recently that a business owner who did not comply with several provisions of the Ohio Basic Building Code can escape liability for injuries on its premises if the condition is "open and obvious". In Lang v. Holly Hill Motel,  Mr. and Mrs. Lang checked into the Holly Hill Motel for the night. They requested a handicapped room because Mr. Lang (age 78) was dependent upon oxygen and carried a portable oxygen tank. The motel did not have one, but assigned him to one that it claimed would only require him to climb one step. When the Langs got to the room, it actually had two steps. With Mrs. Lang’s help, Mr. Lang climbed the first step, but when they attempted to negotiate the second step, he lost his balance, fell, and fractured his hip. Mr. Lang died about three months after the fall.

  Mrs. Lang sued the motel for negligence, claiming that the steps were in violation of several provisions of the Ohio Basic Building Code. The second step exceeded the height limitations in the code and the lack of a handrail was also a violation. The motel claimed that the condition was "open and obvious" and that it owed no duty to Mr. and Mrs. Lang. The motel argued that if the condition is "open and obvious", patrons such as the Langs are obligated by law to protect themselves. Mrs. Lang argued that a building code violation should be an exception to the "open and obvious" doctrine. If the motel was not negligent in this situation, Mrs. Lang argued that the motel would not be held accountable for building code violations. 

  Four members of the Ohio Supreme Court agreed with the motel and found that because the condition was "open and obvious", the motel was not negligent and the Langs were required to look out for themselves in this situation. As a result the Ohio Supreme Court affirmed the trial court's judgment that the case should be dismissed. Two other justices concurred in the judgment, but only because Ohio recently re-affirmed the "open and obvious" doctrine and they felt bound to follow the prior case holding. These two justices did so reluctantly and believed that the better rule would be to allow a recovery despite an "open and obvious" condition if the landowner should anticipate that patrons would be harmed despite the obviousness of the condition. These two justices also hinted that Mrs. Lang should have disputed that the condition was "open and obvious" when the incident occurred at night and the steps were uniform in color. 

  One justice dissented from the decision. He believed that if the building owner violated building code provisions, these violations would be sufficient to allow the injured person to proceed with the case despite the "open and obvious" defense. 

  For now, the defense of "open and obvious" continues to be the law and a huge impediment for injured people to hold property owners accountable for injuries caused by defects in their premises.

   

   

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Unsafe Products

• Chinese manufacturers avoid liability for unsafe products
  Jul 01, 2009

  Everywhere we look in stores, we find products made in China.  What happens if one of those products is defective and someone is injured?  
  
  Lawyers all over the United States are finding out how difficult it is to hold a Chinese company accountable for defective products.  Although more than half of the products found to be defective by the U.S. Consumer Product Safety Commission were manufactured in China, judgments against Chinese companies are few and far between.
  
  There are several reasons for this.  Before a Chinese company can be sued in a state court, the injured party must show that the Chinese company has sufficient contacts with the state to allow the court to hear the case.   If the court finds that there are not enough business ties between the state and the company, the court will say that the court is "without jurisdiction" to hear the case and will dismiss the Chinese company. Even if a Chinese company does have sufficient contacts so that the court retains jurisdiction over the Chinese company, and even if the plaintiff wins, it may be difficult to collect the judgment.  If the Chinese company has no assets in the United States,  the plaintiff would have to go to the courts of China to attempt to seize Chinese assets, a difficult and expensive process.
  
  In Ohio, a person injured by a Chinese product may be able to recover from a United States supplier of the Chinese product.  Ohio Revised Code Section 2307.78 . If the foreign manufacturer is not subject to "jursidiction" in the Ohio courts, the supplier stands in the shoes of the manufacturer and would have to pay a judgment if the injured party proved his case.   
  
  There are rumblings in Congress to make changes that would force Chinese companies to be sued in state courts.  However, until Chinese companies are required to have liability insurance to cover judgments for defective products, little will change.

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