Columbus Personal Injury Lawyer

Archive for 2009:

Damages Caps Upheld Again (Political Subdivisions)

The $250,000 cap on noneconomic damages in RC 2744.05(C)(1) does not violate the right to a jury trial or the right to equal protection under the law. Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030. The court followed its decision in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948. (See Post on Arbino).

The Constitution. Article I Section 5 of the Ohio Constitution, and the Seventh Amendment to the United States Constitution protect the right to a jury in civil cases.

Right to trial by jury. The rationale is that juries decide facts, and the limitation on damages is a question of law. Thus, the statute does not infringe upon the jury’s role as fact-finder.

Equal Protection. A statute is valid if it is rationally related to a legitimate government purpose. The court held: “The state has a valid interest in preserving the financial soundness of its political subdivisions.” Also, since the State has the authority to prohibit all tort actions against political subdivisions, it is neither arbitrary nor unreasonable for the State to limit the amount that can be recovered against a political subdivision.

Date of Decision: 1 Oct 2009

Majority: Moyer; Lundberg-Stratton; O’Connor; Lanzinger; Cupp

Dissent: O’Donnell; Pfeifer

Jeffrey Beausay

Tags: Caps on Damages, Damages, Political Subdivisions

Negligence of Minors

Can a person under the age of 18 be “negligent?” Recall that negligence is the failure to exercise ordinary care for the safety of others. Well, the answer is: it depends how old the minor is. Infants under seven years of age are “incapable of negligence;” children between 7 and 14 are presumed to be incapable of negligence, but the presumption can be rebutted by showing that the child is of sufficient maturity and capacity to avoid danger and make intelligent judgments with regard to the activity in which s/he had engaged; children 14 and older are capable of negligence, but the issue must be determined by the jury.

In Wheaton v. Conkle (1937), 57 Ohio App. 373, the court stated:

This proposition is supported by the case of Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St., 283, 20 N. E., 466, 3 L. R. A., 385, which has never been reversed and is now the law of this state, dealing with the degree of care required of children. On page 289 of the opinion it is stated:

“Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men, reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances, among careful and prudent persons of the class to which they belong.”

In the case of Fightmaster v. Mode, 31 Ohio App., 273, 167 N. E., 407, at page 281, we note the following:

“1. In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances. * * *.

“Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

In Cleveland, C., C. & St. L. Ry. Co. v. Grambo, Sr., Admr., 103 Ohio St., 471, 134 N. E., 648, 20 A. L. R., 1214, at page 476, it is held:

“The standard governing such negligence on the part of a youth is not the same as that of an adult.”

This request, when carefully read, does not say that Section 6310-36, General Code, had no application to Anson Wheaton, aged fifteen. It does say that in the jury’s determination of any violation of the section by him that he is only required to exercise such care as one of his age, of ordinary care and prudence, is accustomed to exercise under similar circumstances.

Some other cases on point are:

Foulke v. Beogher (2006), 166 Ohio App.3d 435, 2006-Ohio-1411
Rolling Mill Co. v. Corrigan (1889), 46 Ohio St. 283
Lake Erie & Western R.R. Co. v. Mackey (1895), 53 Ohio St. 370
Holbrock v. Hamilton Distributing, Inc. (1967), 11 Ohio St.2d 185

Jeffrey Beausay

Tags: Minors, Negligence, Personal Injury

Medical Malpractice: Standard of Care Defined

Banff Canada 2 Negligence is a failure to exercise reasonable care under the circumstances.

The definition of “medical negligence” or “medical malpractice” dates back to 1928 when the Ohio Supreme Court decided Ault v. Hall (1928), 119 Ohio St. 422:

In an action against a surgeon for malpractice, the jury should be instructed that the plaintiff must show by a preponderance of the evidence and the jury must find that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances.

The rule was reiterated in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127:

1. In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.

2. The standard of care for a physician or surgeon in the practice of a board-certified medical or surgical specialty should be that of a reasonable specialist practicing medicine or surgery in that same specialty in the light of present day scientific knowledge in that specialty field; therefore, geographical considerations or circumstances control neither the standard of the specialist’s care nor the competence of the testimony of an expert in that specialty.

That is a lot of words to say, “A physician must exercise reasonable care under the circumstances.”

Today, even Family Medicine and Internal Medicine are board certified specialties, so presumably the second paragraph should govern all physicians. Nevertheless, practicing trial lawyers use the phrase “standard of care” to denote conduct that is reasonable under the circumstances; if conduct is unreasonable, then the physician is deemed to have “deviated” from the “standard of care.” These concepts are confusing even to those who practice in this area every day. It would better serve doctors, lawyers, judges, and juries if the Ohio Supreme Court could more clearly state what is meant by “medical negligence”, ”medical malpractice,” or “standard of care.” They should adopt the “reasonable conduct under the circumstances” language.

If a person has knowledge, skill, or intelligence superior to that of the ordinary person (such as a trained physician), the law will demand of that person conduct consistent with it. Professionals are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. A doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing; a doctor will be liable if harm results because he does not have them.

T. Jeffrey Beausay

Tags: Medical Malpractice

TJB on Pens

In search of the best (cheap) writing instruments, we conducted a very unscientific (totally subjective) survey of the best selling (Japanese made) rollerball pens. So that we were comparing similar pens, we used pens with blue ink and .7 mm or .8mm tips. Our top ten list is as follows:

Uniball Vision Elite (Bold, .8mm) (UPC No. 67182). Ink Type: Liquid. This pen has a .8mm tip, so is fractionally larger than the others. The Uniball Vision (UPC 60020) (Fine, .7mm) is also a good choice, but is inferior to the .8mm Elite. Price: > $2 each.
Pilot Precise V7. Ink type: Liquid. Very nice pen. I have had some that seem ink-poor for awhile, then regain their original flow.
Pentel EnerGel Deluxe (22941): Ink is said to be a blend of liquid and gel. Uses Pentel LR7 refill cartridges.
Pilot G2 (31299): Ink type: Gel. Uses Pilot G2 refill. Touted as “America’s #1 selling Gel pen.” The G2 is a solid choice, but is inferior to the Liquids above.
Zebra Sarasa (UPC 46865). Ink type: Gel. This pen looks and feels like the G-2. Price: < $1 each. Also an excellent choice.
UniBall Signo 207

Pen Types: There are generally three categories of popular pen types used in the USA: Ballpoint; Rollerball; and Fountain. Ballpoints use oil-based ink and dry quickly on the paper; Rollerballs use either Liquid or Gel inks, which are water-based as opposed to oil-based; and Fountain pens use water-based liquid ink delivered through a nib. Although Rollerballs write smoother (and therefore faster) than a Ballpoint, the Ballpoint will last 8 times longer.

Ink Type: With Rollerball pens, users should distinguish Liquid inks from Gel inks. Liquids use dye solute in a water-based solvent, whereas Gels use pigments in a water-based solvent.

Jeffrey Beausay

Tags: Miscellaneous, Pens

Open and Obvious Hazards

Where a danger is “open and obvious,” a landowner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573. The owner or occupier may reasonably expect that persons entering the premises will discover those dangers, and take appropriate measures to protect themselves.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644.

Negligence Per Se Exception

The open and obvious defense does not apply if the defendant was “negligent per se” for violating a safety statute. See Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, para. 25; Chambers, 82 Ohio St.3d at 567-8.

Violation of Ohio Basic Building Code: In Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, the Ohio Supreme Court held that an open and obvious hazard does not create liability (i.e., an injured person cannot recover), even if the hazard is a violation of the Ohio Basic Building Code. The basis for this distinction is that statutes “reflect public policy,” whereas administrative rules are created by administrative agency employees who act to implement the General Assembly’s public policy decisions.

Danger Created by Independent Contractor: An independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.” Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642.

Tags: Premises Liability

Meningitis

Meningitis is an inflammation of the membranes (meninges) and cerebrospinal fluid surrounding your brain and spinal cord, usually due to the spread of an infection. The swelling associated with meningitis often triggers the “hallmark” symptoms of this condition, including headache, fever, and a stiff neck.

Most cases of meningitis are caused by a viral infection, but bacterial and fungal infections also can lead to meningitis. Depending on the cause of the infection, meningitis can resolve on its own in a couple of weeks — or it can be a life-threatening emergency.

If you suspect that you or someone in your family has signs or symptoms of meningitis, seek medical care right away. Early treatment can prevent serious complications.

If you or someone in your family had meningitis that was not properly diagnosed, please feel free to call me to discuss the case.

Jeff Beausay

Tags: Medical Conditions, Meningitis

Caps on Damages: Medical Malpractice

Under Ohio law, in medical malpractice cases (i.e., not personal injury or wrongful death cases), the amount one can recover for non-economic losses caused by a negligent physician or other healthcare provider is capped (limited). See RC 2323.43. The caps are as follows:

A. Catastrophic Injuries: $500,000/plaintiff/$1Million/Occurrence

“Catastrophic” Defined: A permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or a permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.

B. Non-Catastrophic Injuries: The greater of $250,000 or 3 times the plaintiff’s economic losses (up to $350,000/plaintiff) or a maximum of $500,000 per occurrence.

RC 2323.43 went into effect on April 11, 2003.

Comments:

First, there is no cap on economic damages, such as medical expenses, loss of income, future medical care, etc. The caps only apply to non-economic damages, such as pain and suffering, emotional distress, mental anguish, etc.

The Ohio Supreme Court will need to determine if these caps comply with the Ohio Constitution. The Court already has upheld the personal injury caps (See Post on PI caps), but the PI caps do not apply to ”catastrophic injuries” as defined in the statute; in medical malpractice cases, on the other hand, the caps are higher than those imposed in non-catastrophic cases.

TJB’s Opinion

I’m sure you would like to know how I feel about damages caps. I have no problem imposing damages caps, so long as the caps are fair and reasonable. For example, I feel that the personal injury damages caps for non-catastrophic injuries (see RC 2315.18) are reasonable; they protect a defendant against an outlandish jury verdict for non-catastrophic injuries. But there must be an exception for severe injuries, and the cap needs to be substantial in such cases (i.e. much more than the RC 2315.18 or 2323.43 caps). If you were seriously injured and had a permanent disability, these caps are not nearly sufficient to cover the losses that might accompany such injuries. That’s my opinion.

Jeff Beausay

Tags: Caps on Damages, Medical Malpractice

Birth Injuries/Cerebral Palsy

cp-photo One of the most controversial areas of medical malpractice litigation is “birth injury” litigation. The most common of these are brought by the parents of children with cerebral palsy (CP), who claim that the CP was caused (at least in part) by the negligence of the defendant physicians or nurses before, during, or shortly after labor and delivery. ”Birth injury” is a misnomer because these types of injuries can occur prenatally from conception until birth, and can indeed occur after birth. The cases are usually filed against an obstetrician, but can also include pediatricians, nurses, hospitals and others. These cases are controversial because they involve large sums of money, and the cause of CP in many cases is not known. Large settlements and jury verdicts result in higher insurance premiums for the affected doctors, a cost that then is passed on to consumers of health care (in the form of health insurance), and the public at large (in the form of health care that is paid for under Medicaid, Medicare, and other government programs).

Definition of Cerebral Palsy. “Cerebral palsy” is a general term that describes a group of disorders that appear during the first few years of life and affect a child’s ability to coordinate body movements. These disorders are caused by damage to a child’s brain early in the course of development. The damage can occur during fetal development, during the birth process, or during the first few months after birth.

Cerebral palsy ranges from mild to severe. Physical signs of cerebral palsy include weakness and floppiness of muscles, or spasticity and rigidity. In some cases, neurological disorders such as mental retardation or seizures also occur in children with cerebral palsy.

Cerebral palsy is not curable. However, getting the right therapy for your child can make a big difference. Today, children with cerebral palsy benefit from a wide range of treatment options and innovations.

cp-types

Incidence. About 1-2 babies/1000 born at or near term (> 34 weeks) develop cerebral palsy. It is estimated that 15-20% of cases of CP are caused during labor and delivery.

Causes. The cause of CP in many cases is not known. We know that CP results from an abnormality in or injury to the cerebrum (the largest area of the brain), which controls sensation and voluntary motor function. But we do not always know how or when the abnormality/injury occurs. Although cerebral palsy affects movement, the underlying problem originates in the brain, not in the muscles themselves.

Doctors and researchers don’t completely understand the cause of all cases of cerebral palsy, which are usually present at birth (congenital). For many years, doctors and researchers believed that cerebral palsy was caused by a lack of oxygen during birth. Now they believe that only a small number of cases are caused by problems during labor and delivery.

The causes of Cerebral Palsy include maternal infection during pregnancy, incompatibilities between the blood of the mother and her fetus, genetic or metabolic disorders causing abnormal brain development before birth, and disturbances to brain circulation before birth, caused by an artery spasm or blood clot, similar to a stroke in adults.

Comments. Birth injury litigation has caused a great deal of controversy over the last 20 or so years. Life care plans for individuals with CP usually run in the millions of dollars, depending on the severity of the disability. Consequently, these cases involve large sums of money, and both sides (plaintiffs and defendants) have substantial financial risk in going to trial.

It is almost universally agreed that perinatal asphyxia can cause CP, but so can many other things. The difficulty lies in proving the cause in any given case. Not only must we prove what caused the CP, we also must prove when the injury occurred, and that the injury could have been avoided.

If you suspect that your child has sustained a birth injury due to the negligence of a healthcare provider, please feel free to contact us to discuss your case.

Jeffrey Beausay

Tags: Birth Injuries/Cerebral Palsy, Medical Malpractice

Periventricular Leukomalacia (PVL)

What is Periventricular Leukomalacia (PVL)?

Periventricular leukomalacia (PVL) is damage and softening of the white matter, the inner part of the brain that transmits information between the nerve cells and the spinal cord, as well as from one part of the brain to another. Periventricular means around or near the ventricles (the spaces in the brain containing the cerebrospinal fluid); leuko means white; malacia means softening.

With PVL, the area of damaged brain tissue can affect the nerve cells that control motor movements. As the baby grows, the damaged nerve cells cause the muscles to become spastic or tight, and resistant to movement. Babies with PVL can develop cerebral palsy (a group of disorders that prevent the child from controlling his/her muscles normally), and may have intellectual or learning difficulties. PVL can occur alone or in addition to intraventricular hemorrhage (IVH) (bleeding inside the brain).

There are two basic components to PVL: Focal necrosis and more diffuse gliosis. In cystic PVL, the focal necrotic component is large and evolves into cysts. In noncystic PVL, the focal necrotic component is small and evolves into small glial scarring, rather than cysts. Cystic PVL is the most severe form of PVL.

What causes PVL?

The white matter of premature infants is vulnerable, especially to ischemia (reduced blood flow), but also to infection/inflammation. These two causes can operate in concert to potentiate each other. Thus, most babies with PVL are premature.

Outcome

The most common outcome is spastic diplegia, which means tight, contracted muscles, especially in the legs.

Diagnosis

Head ultrasound: Usually performed at birth and over a period of weeks thereafter.

MRI (magnetic resonance imaging): Shows necrosis (“softening”) of white matter dorsal and lateral to the external angles of the lateral ventricles.

Treatment

There are no treatments for PVL directly. However, parents can often benefit from physical therapy, occupational therapy, and speech therapy offered through local organizations who specialize in helping children with this and similar disorders.

Prevention

Corticosteroids are often given to pregnant mothers at risk for premature birth. These medications can reduce the respiratory difficulties these children often encounter at birth.

For more information, see the National Institute of Health section on PVL.

Contact Me

If you or someone you know has a child with a suspected birth injury, it is important that you consult with someone who actually handles birth injury litigation; it is very specialized, and very few attorneys know what they’re doing in these cases. In my career, I have been fortunate to have handled many of these cases (for plaintiffs and defendants). If you would like to discuss your case, please feel free to contact me.

T. Jeffrey Beausay

Tags: Birth Injuries/Cerebral Palsy, Medical Malpractice, Periventricular Leukomalacia