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Archive for April, 2008:


About Me

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T. Jeffrey Beausay

Born:  Toledo, Ohio, 1962

Education:

High School:  Perrysburg High School (1976-1980)

Undergraduate:  The Ohio State University (BA 1984)

Law:  University of Toledo, College of Law (JD 1987)

Experience:

2001-Present:  The Donahey Law Firm (Columbus, Ohio)

2000-2001:  Roetzel & Andress (Columbus, Ohio)

1996-2000:  Reminger & Reminger (Columbus, Ohio)

1990-1996:  Lane Alton & Horst (Columbus, Ohio)

1988-1990:  Schottenstein Zox & Dunn (Columbus, Ohio)

1987-1988:  Robison Curphey & O’Connell (Toledo, Ohio)



What’s My Case Worth?

We take many factors into consideration in evaluating a case.  These include but are not limited to:

• Do the facts of the case cause an unusual reaction?
• Are the parties and witnesses likeable and believable?
• Is the case venued in a conservative, moderate, or liberal jurisdiction?
• The skill level of the defense attorney
• The severity of the injuries
• The economic losses (usually medical expenses and loss of income)
• The non-economic losses (pain and suffering, emotional distress, permanent disability, disfigurement, etc.) (See Damages).

Comments

Remember, there are three main categories of damages in most cases:  Medical expenses, lost income, and pain and suffering.  Medical bills and loss of income are easy to determine.  As for pain and suffering, it just depends on how serious the injury is, how long it takes to recover, and whether there is permanancy. 

These are some of the important factors taken into consideration.  Our attorneys have had years of experience handling cases similar to yours in a variety of circumstances, and therefore are in the best position to evaluate your case.

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My Philosophy

I know, this has nothing to do with civil litigation, but I enjoy astronomy, and it’s a good “universal” message. 

The astronomer Carl Sagan gave the following remarks at a university commencement speech.  It’s a good read, especially for those who are prone to self-importance. 

Reflections on a Mote of Dust

– Carl Sagan (1934-1996)

Pale Blue Dot

We succeeded in taking that picture [from deep space, over 4 billion miles away] and, if you look at it, you see a dot (encircled). That’s here.  That’s home.  That’s us.  On it, everyone you ever heard of, every human being who ever lived, lived out their lives.  The aggregate of all our joys and sufferings, thousands of confident religions, ideologies and economic doctrines, every hunter and forager, every hero and coward, every creator and destroyer of civilizations, every king and peasant, every young couple in love, every hopeful child, every mother and father, every inventor and explorer, every teacher of morals, every corrupt politician, every superstar, every supreme leader, every saint and sinner in the history of our species, lived there on a mote of dust, suspended in a sunbeam.

The earth is a very small stage in a vast cosmic arena.  Think of the rivers of blood spilled by all those generals and emperors so that in glory and in triumph they could become the momentary masters of a fraction of a dot.  Think of the endless cruelties visited by the inhabitants of one corner of the dot on scarcely distinguishable inhabitants of some other corner of the dot.  How frequent their misunderstandings, how eager they are to kill one another, how fervent their hatreds.  Our posturings, our imagined self-importance, the delusion that we have some privileged position in the universe, are challenged by this point of pale light.

Our planet is a lonely speck in the great enveloping cosmic dark.  In our obscurity — in all this vastness — there is no hint that help will come from elsewhere to save us from ourselves.  It is up to us.  It’s been said that astronomy is a humbling, and I might add, a character-building experience.  To my mind, there is perhaps no better demonstration of the folly of human conceits than this distant image of our tiny world.  To me, it underscores our responsibility to deal more kindly and compassionately with one another and to preserve and cherish that pale blue dot, the only home we’ve ever known.

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What is Negligence?

Since many of our cases involve negligence of one kind or another, it is necessary to define negligence. The Ohio Supreme Court defines negligence as follows: “Negligence is the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances.” That has been the definition of negligence in Ohio (and probably all other states) for many years. And the courts have of course come up with different ways of expressing this concept.

“In order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.  The existence of a duty depends on the foreseeability of the injury.”  In other words, one only has a duty toward another if an injury is foreseeable.

For example, if you are approaching a red light and, while talking to a friend on your mobile phone, you run the red light, you are negligent.  People exercising ordinary care and prudence do not talk on mobile phones and run red lights.

Proximate cause is defined as follows: “Where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established.  One is thus liable for the natural and probable consequences of his/her negligent acts.”

For example, in our example above, if the driver on the mobile phone runs a red light and crashes into a car traveling lawfully through the intersection, the driver at fault is liable for all damages and injuries that flow directly from his/her negligence.

These same concepts apply to medical malpractice cases.  Physicians and other healthcare providers must exercise ordinary, reasonable care under the circumstances.  If they don’t, they are negligent, and they are liable for any injury caused by their negligence.

Jeff Beausay



Medical Malpractice: Loss of Chance

In medical malpractice cases, the general rule is that the plaintiff must prove causation through expert medical testimony in terms of probability to establish that the injury or death was more likely than not caused by the defendant’s negligence. 

Loss of chance is a misunderstood area of medical malpractice litigation.  Many lawyers and judges I deal with still do not understand the concept, even though it has been on the books for more than a decade.

The Ohio Supreme Court adopted the “loss of chance” theory in Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483.  The holding was:

1. In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care provider’s negligent act or omission increased the risk of harm to the plaintiff. It then becomes a jury question as to whether the defendant’s negligence was a cause of the plaintiff’s injury or death.

2. The amount of damages recoverable by a plaintiff in a loss-of-chance case equals the total sum of damages for the underlying injury or death assessed from the date of the negligent act or omission multiplied by the percentage of the lost chance.

3. To ascertain the amount of damages in a case of lost chance of survival or recovery, the trial court must instruct the trier of fact to consider the expert testimony presented and (1) determine the total amount of damages from the date of the alleged negligent act or omission, including but not limited to lost earnings and loss of consortium; (2) ascertain the percentage of the patient’s lost chance of survival or recovery; and (3) multiply that percentage by the total amount of damages.

What is not understood is the first part of the holding.  In order for loss of chance to apply, the plaintiff must start out with a less than even chance of survival.  In other words, if plaintiff has a 75% chance of surviving his condition or illness, and a doctor’s negligence reduces the odds to a 25% chance of survival, that would not be a loss of chance case because plaintiff in fact lost a better-than-even chance of survival.  But if the plaintiff has a 40% chance of survival, and the physician’s negligence reduces the odds to 20%, then the loss of chance theory comes into play.

The Court also stated, “The plaintiff is not required to establish the lost chance of recovery or survival in an exact percentage in order for the matter to be submitted to the jury.”  On the other hand, percentages are needed to do the math.  This is another example of judicial imprecision that inevitably leads to further litigation to clarify the rule.

The loss of chance theory is frequently employed in cancer cases, where there has been a delayed diagnosis; such was the case in Roberts.  Since there is so much literature on survival rates in cancer patients, these data are available in cancer cases, but are unusual in other types of malpractice cases.



© Jeffrey Beausay
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