Jeffrey Beausay

Archive for May, 2008:

Fast Fair Results

Fast

The Problem. The legal system is anything but fast; the system is simply not equipped to handle the number of cases filed. When a personal injury or medical malpractice case is filed, the trial date is likely one to two years down the road, sometimes longer. If you consider the possibility of appeal, cases can drag out for many years.

The Solution. An experienced trial attorney using cutting edge technology can quickly evaluate your case by meeting with you, getting the needed information (medical records, medical bills, lost income verification, etc.), and communicating effectively with the insurance companies involved. When both the injured person and the insurance company are acting reasonably, most cases can be settled fairly quickly. When either party is unreasonable, the case goes into the SLOW bin (the court system).

Alternative Dispute Resolution. Arbitration and mediation are two under-utilized methods of getting cases resolved without the delay of the court system. Arbitration is a forum whereby the case is submitted (i.e. tried) to usually three arbitrators, who actually decide the case (i.e. determine who was at fault, and award reasonable compensation for the losses suffered). Arbitrations can be either binding or non-binding. Mediation is a process whereby the parties meet with a neutral mediator, and try to settle the case.

Many of our cases are resolved using these alternative dispute resolution methods, and we often encourage our clients to try these techniques to get their case resolved quickly and fairly, particularly when our client needs to have a fast resolution of their case. Alternative dispute resolution offers our clients a faster, less expensive means of getting their case resolved. Make no mistake, we are ready, willing, and able to take your case into the court system and present your case to a jury, if that is in your best interests.

Fair

The Problem. It’s like the old David vs. Goliath story. Our judicial system is adversarial, meaning it pits one party against another (plaintiff vs. defendant; accident victim vs. insurance company; patient vs. physician; etc.). Most of our cases are against insurance companies and those they insure. The plaintiff (victim) is often against a multi-billion dollar insurance company with unlimited financial resources. The plaintiff, on the other hand, normally has few if any resources to fight a huge insurance company when the insurance company does not treat them fairly.

The Solution. At The Donahey Law Firm, we have the skills and resources to take on the insurance companies. We have been doing it for many years, and we do it every day.

I personally have represented all sides (plaintiffs, defendants, injured parties, insurance companies, doctors, hospitals, employers, employees, etc.) in virtually every context (motor vehicle accidents, medical malpractice cases, product liability cases, work-related injuries, etc.), and this gives me a broad perspective that many attorneys do not have. It is very advantageous to know your opponent’s strengths and weaknesses. Having worked both sides, I have that advantage.

Results

Please see, Verdicts & Settlements

Jeff Beausay

Tags: Choosing the Right Lawyer

Subrogation: What is it?

Suppose you are injured in an auto accident caused by another driver. Your medical bills are paid in part by your auto insurance company (Medical Payments Coverage), and in part by your health insurance company. Both insurance companies will want to be reimbursed when you settle your claim against the driver at fault (or his/her insurance company). That is called subrogation. It essentially means that whoever paid your medical bills (or other losses) wants to be reimbursed when your case settles.

The above scenario is an example of contractual subrogation. There also is statutory subrogation: For example, if you are eligible for Medicaid or Medicare and get your bills paid that way, the state and federal government are entitled to subrogation by statute.

Regarding Medicaid subrogation, RC 5101.58 governs the state’s subrogation rights. If an injured party’s medical expenses are paid by Medicaid, the injured party must notify the Ohio Department of Job and Family Services that s/he is pursuing a claim against the third party tortfeasor. After attorney fees and case expenses are deducted from the settlement amount, the ODJFS is entitled to 1/2 of the remaining amount, or the actual amount of the benefits paid (whichever is less). Thus, as a general rule of thumb, you can expect to receive no less than about 1/3 of the settlement in these situations.

In Blue Cross & Blue Shield Mut. of Ohio v. Hrenko (1995), 72 Ohio St.3d 120, the Ohio Supreme Court held:

In Ohio, there are three distinct kinds of subrogation: legal, statutory, and conventional. Legal subrogation arises by operation of law and applies when one person is subrogated to certain rights of another so that the person is substituted in the place of the other and succeeds to the rights of the other person. State v. Jones (1980), 61 Ohio St.2d 99, 100-101. Statutory subrogation is a right that exists only against a wrongdoer. Conventional subrogation is premised on the contractual obligations of the parties, either express or implied. The focus of conventional subrogation is the agreement of the parties. Id. at 101.

This decision was authored by Justice Wright, and agreed to by Justices Moyer, Douglas, Sweeney, Pfeifer, and Cook; Justice Resnick concurred in judgment only. To my knowledge, no Ohio court prior to this recognized these three separate types of subrogation, and I have no idea where this definition of “statutory subrogation” came from (no citation is given). The Jones case referenced in Hrenko does distinguish betweeen legal/equitable subrogation and conventional/contractual subrogation, but I’m not sure where Justice Wright’s definition of “statutory subrogation” came from. Under most subrogation statutes, the statutory subrogee may assert a subrogation claim against both the tortfeasor and the claimant, which seems contrary to the definition provided in Hrenko.

Conclusion

A trial lawyer understands the law, and knows your rights. We often must challenge the subrogation liens when there isn’t enough liability insurance to pay the claims, and this is another way we can help you maximize your recovery in the event of an injury.

Jeffrey Beausay

Tags: Subrogation

Medical Malpractice: Statute of Limitations

Q. Suppose you are severely injured as a result of medical malpractice or hospital negligence. How long do you have to file your case against the negligent party/parties? In other words, what is the statute of limitations in medical malpractice cases in Ohio?

A. Under Ohio law, an action upon a medical claim “shall be commenced within one year after the cause of action accrued.” RC 2305.113. This applies to negligence claims against any type of healthcare provider.

Q. But when does the cause of action accrue?

A. The Ohio Supreme Court has held that a cause of action “accrues” upon the occurrence of a “cognizable event” (substituting another vague phrase). The cognizable event is “some noteworthy event which does or should alert a reasonable person-patient that an improper medical procedure, treatment, or diagnosis has taken place.”

In Norgard v. Brush Wellman, Inc., 2002-Ohio-2007, 95 Ohio St.3d 165, the Ohio Supreme Court held: “Discovery of an injury alone is insufficient to start the statute of limitations running if at that time there is no indication of wrongful conduct of the defendant.” Thus, two things must happen for the one year statute to start running: 1) Patient discovers that s/he is injured (usually–but not always–this is obvious); 2) Patient discovers that his/her injury was caused by the wrongful conduct of the defendant. It is thus the knowledge of the wrongful conduct that triggers the one year statute. Essentially there is a moment in time when a reasonable patient suspects that his/her physician did something wrong; that is the cognizable event as I understand it.

There is a provision in the statute that lets you extend the statute of limitations (SOL) by 180 days, which we refer to as a “180-day letter.” But don’t take any comfort in that because, if your 180-day letter is for any reason not perfected or you don’t serve the right parties, you’re SOL (alternative definition).

Also, there are exceptions to the rule. For example, the SOL does not run as to minors until the minor turns 18 years of age. And the SOL does not apply to mentally incompetent persons. And if medical negligence causes death of the patient, the wrongful death claim carries a 2 year statute of limitations.

TJB’s Comments:

Unlike motor vehicle accidents and wrongful death claims, which carry two year statutes of limitations, medical malpractice cases have a one year statute of limitations. So if you suspect medical malpractice (medical negligence), you should consult an attorney immediately. Understand that it takes us several weeks to gather necessary medical records and send them to experts for review. And there may be exceptions to these rules, so be sure to call and ask if you’re not sure. And don’t wait til the last minute!

Jeffrey Beausay

Tags: Medical Malpractice, Statute of Limitations

Medical Malpractice: General

Vitruvian Man

Under Ohio law, medical malpractice (or medical negligence, as it is sometimes called) is the failure of a health care provider to use ordinary skill, care, and diligence under the circumstances, which results in severe injury or death to the patient. This is called the “standard of care.” Said another way, doctors, nurses, and all other healthcare providers must act reasonably and appropriately in any given circumstance, and the failure to do so can result in liability if their negligence causes substantial harm to the patient.

Medical malpractice cases are more difficult to prove than cases of ordinary negligence, such as motor vehicle accidents, premises liability, etc. There are several reasons for this. First, proving that a doctor or nurse was negligent in the first place is more complicated than, for example, proving that someone ran a red light. The standard of care under the circumstances is often debateable, whereas everyone agrees that it is negligent to run a red light.

Second, medical negligence cases are expensive. Expert witnesses must be retained to prove that the defendant was negligent, and that the negligence caused substantial harm to the patient. Medical experts are expensive, which makes prosecuting these cases expensive.

Because these cases are risky and difficult to prove, very few attorneys have the skills and resources to handle them. It is especially important in medical malpractice cases that you consult with an experienced trial attorney who handles medical malpractice cases (as opposed to someone who trolls for these cases, then gives them to someone else to handle).

In my career, I have had the fortune of handling many medical malpractice cases, both for physicians and for patients. I therefore understand the ins and outs of medical malpractice litigation from both sides.

If you or a loved one have been injured as a result of medical negligence, please feel free to contact me to discuss your case.

Ohio’s Wrongful Death Statute: The Basics

Wrongful death actions in Ohio are goverved by statute: RC 2125.01 and 2125.02. Here are the basics of these statutes.

Q. Who can bring a wrongful death action?

A. Only the “personal representative” of the decedent can bring a wrongful death action. If the decedent had a will, the will should identify an executor. If the decedent did not have a will, the probate court appoints an administrator. Wrongful death actions are brought for the benefit of the surviving spouse, children, and parents of the decedent, all of whom are presumed to have suffered damages by reason of the wrongful death. Other next of kin can also recover, but they do not have a presumption of damages enjoyed by the immediate family members. This essentially means that, if a next of kin wishes to recover in the case, s/he must testify at trial, whereas the immediate family members need not testify (since their damages are presumed).

Q. What damages are recoverable in a wrongful death case?

A. There are five categories of damages:

Loss of Support (from the reasonably expected earning capacity of the decedent)
Loss of Services of the decedent
Loss of the Society of the decedent (companionship, consortium, care, etc.)
Loss of Prospective Inheritance to the decedent’s heirs
Mental Anguish

Items 1, 2, and 4 are considered economic losses (usually require the testimony of an economic expert); items 3 and 5 are considered non-economic losses (do not require expert testimony).

Q. What about the decedent’s conscious pain and suffering before s/he died?

A. These damages are also recoverable, and are called “survivorship” damages. The wrongful death statutes pertain only to wrongful death damages. However, if the decedent had any conscious pain and suffering before s/he died, the complaint must include a claim for “survivorship” losses.

Comments

Whether the death is caused by a motor vehicle accident, medical malpractice, or any other cause, these principles apply. Wrongful death cases have a two year statute of limitations (even if caused by medical malpractice, which normally carries a one year statute). Also, the amount a jury can award in a wrongful death case is not capped by statute; the Ohio Constitution prohibits caps in wrongful death cases.

Jeff Beausay

Tags: Wrongful Death

Verdicts & Settlements

Saturn, as seen by the cassini spacecraft

Below is a small sampling of some of the recent verdicts and settlements we have obtained for our clients.

$525,000 Medical malpractice; wrongful death; delayed diagnosis of prostate cancer

$1.25 Million Medical negligence; wrongful death; negligent anesthesia care during routine knee operation.

$1.5 Million Work-related injury; severe burns; failure to maintain safe workplace. OSHA violations.

$650,000 Motor vehicle accident; truck-automobile collision; multiple injuries.

$400,000 Medical malpractice; delayed diagnosis of uterine cancer.

$400,000 Medical malpractice; wrongful death; failure to diagnose pulmonary embolism. Deep Vein Thrombosis (DVT).

$750,000 Medical malpractice; brain injury; failure to diagnose subarachnoid hemorrhage. Severe Headache. “Worst headache of my life.”

$1.25 Million Medical malpractice; loss of limb; failure to diagnose arterial occlusion. Blue toe syndrome.

$100,000 (Policy Limit) Auto Accident; broken leg.

$100,000 (Policy Limit) Car Crash; fractured vertebra.

$100,000 (Policy Limit) Car Accident; multiple injuries.

$1.2 Million Medical Malpractice; birth injury; cerebral palsy; anoxic brain injury caused by failure to respond to fetal distress shown on electronic fetal monitoring (EFM). Non-reassuring fetal status; periventricular leukomalacia.

$1 Million (Policy Limit) Medical Malpractice: Negligent anesthesia service; paralysis after epidural steroid injection.

$1.1 Million Medical Negligence; wrongful death: Failure to diagnose bacterial meningitis in 5 year old.

$800,000 Medical Negligence; stroke; patient underwent procedure to correct atrial fibrillation; patient was taken off Coumadin to undergo the procedure. The procedure failed (i.e., patient went back into a-fib after 24 hours), so the patient had to be put back on his Coumadin. Instead of giving the patient his customary 5 mg dose, the physician prescribed .5 mg (1/10 the baseline dose). The patient had a massive stroke before his family recognized the medication error. The patient survived but was severely disabled by the stroke.

$2.25 Million: Medical Negligence; birth injury; mismanagement of Hypertension in Pregnancy; improper use of Atenolol in pregnancy; periventricular leukomalacia; cerebral palsy; pregnant patient with mild hypertension was prescribed Atenolol (a beta blocker), which is not recommended for use in pregnancy. Mother took Atenolol throughout pregnancy. Atenolol causes placental disruption, which occurred in this case. Obstetricians also did very little fetal evaluation in the critical third trimester. Child has cerebral palsy, spastic diplegia (the specific brain injury is periventricular leukomalacia).

$350,000. Wrongful death from Prostate Cancer. Patient was not screened for prostate cancer, resulting in delayed diagnosis of prostate cancer, which had metastasized.

$1.2 Million: Medical Malpractice; delayed diagnosis of Glaucoma causing blindness; optometry malpractice/negligence.

Contact Me.

Tags: Choosing the Right Lawyer, Verdicts & Settlements

Damages

We are often asked what damages are recoverable when someone is injured by someone else’s negligence. (Wrongful death damages are covered in another post: Wrongful Death). As a general rule, an injured person is entitled to recover an amount that will fairly and justly compensate him/her for the injury sustained. The injured party shall have compensation for all of the injuries sustained. Compensatory damages are intended to “make the plaintiff whole.” The three most common categories of recoverable damages are:

I. Medical Expenses (past and future)

II. Lost Earnings and Loss of Earning Capacity (past and future)

III. Pain and Suffering. The most common noneconomic loss is the physical pain and mental suffering endured by the plaintiff as a direct result of the injury sustained. The amount of money damages for pain and suffering is strictly a matter for the jury to decide.

Permanent Disability. For very serious injuries, if the plaintiff has suffered a permanent disability, such as the inability to perform the usual activities of life, the basic mechanical body movements of walking, climbing stairs, feeding oneself, driving a car, etc., or by way of the inability to perform the plaintiff’s usual specific activities that had given pleasure to the plaintiff, the jury can make a separate award for permanent disability, which is separate from pain and suffering.

Other Damages. In addition to the main categories, additional damages may be awarded in certain circumstances, such as recovery for scars and disfigurement, family losses (loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education), increased care burden, etc.

For a comprehensive discussion of recoverable damages for personal injury under Ohio law, see Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601. A fairly comprehensive list of the recoverable damages for personal injury is:

Medical Expenses
Loss of Income
Physical Pain: Physiological (discomfort, distress, or agony)
Mental Suffering: Psychological; the mental or emotional consequences of the plaintiff’s injury (includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, ordeal, etc.)
Inability to Perform Usual Activities/Loss of Enjoyment of Life: These are broken down into basic activities such as walking, climbing stairs, feeding oneself, driving a car, and activities specific to the plaintiff’s lifestyle, such as golfing, fishing, yardwork, bowling, hobbies, dancing, outdoor activities, playing musical instruments, etc.

Comments:

While medical expenses and loss of income are usually easy to calculate, the noneconomic (intangible) losses of pain, suffering and permanent disability are difficult to predict-the jury is free to award whatever they deem fair and reasonable. Nevertheless, an experienced trial attorney will have a general sense of what a jury will award in any given case.

Jeff Beausay

Tags: Damages

Product Liability

Product Liability refers to serious injuries or wrongful death caused by defective and dangerous products. Product liability is a unique area of the law in that it is governed in part by statute (RC 2307.71-80) and, in many cases, the injured party need not prove that the product seller or manufacturer was negligent. In other words, if a product is unreasonably dangerous (as that phrase is defined in the statute), the seller and manufacturer can be held “strictly liable,” even if the seller/manufacturer was exercising ordinary care in the design and manufacture of the product.

Like medical malpractice cases, product liability cases are much more expensive and difficult to prosecute than straight negligence cases (such as motor vehicle accidents). Expert witnesses must be retained to 1) explain how the accident happened, 2) describe the product’s defect(s), and 3) testify as to how the accident could have been avoided with a better product design or manufacturing standard. And, as in medical malpractice cases, it is important that you retain an attorney who has experience handling product cases.

If you or a loved one have been seriously injured by a dangerous or defective product, please feel free to contact me to discuss your case. There is no obligation and no fee for the initial consultation.

Jeff Beausay

Tags: Product Liability

Uninsured/Underinsured Motorist Coverage: Amount available for payment; (Webb v. McCarty)

Suppose you and three passengers are severely injured in a motor vehicle accident caused by the negligence of another driver. The driver at fault has a $50,000/$100,000 policy, which means that the policy limit is $50,000 per person (regardless of how badly the person is injured), and $100,000 per accident (regardless of the number of people injured). Since there is only 100,000 available for all four injured parties, let’s say the liability insurance company pays each $25,000.

Now we look to your policy, which should have underinsured motorist coverage (if you were smart enough to buy it). Let’s say you also have a $50,000/$100,000 policy. Are you entitled to the additional $25,000 available under your UM coverage? In other words, even though your limits are the same as the driver at fault, you only received $25,000. Are you entitled to an additional $25,000 from your insurance company?

Answer: Yes. In Webb v. McCarty, 114 Ohio St.3d 292, 2007-Ohio-4162, the Ohio Supreme Court held that you are entitled to an additional $25,000 from your insurance company.

Lesson: Buy as much uninsured/underinsured motorist (UM) coverage as you can reasonably afford, and consult with your insurance agent about how much you should have. There are many, many uninsured and underinsured drivers out there. UM coverage is not that expensive, especially compared to the other coverages you get with a typical insurance policy. Hopefully you will never need to use it, but if you are severely injured in an accident, you’ll be glad you have it.

Jeff Beausay, Trial Lawyer

Tags: Uninsured/Underinsured Motorist Coverage