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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).

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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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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

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Ohio Workers’ Compensation Subrogation Statute Upheld by Ohio Supreme Court

The Ohio Supreme Court has upheld the Ohio Workers’ Compensation Subrogation Statute, which was attacked on constitutional grounds.  The case is Groch v. Gen. Motors Corp., Slip Opinion No. 2008-Ohio-546.

If a worker in Ohio is injured on the job due to the negligence of a third party (i.e. someone other than his/her employer), the worker has both a workers’ compensation claim, and a claim against the person who caused the injury.  If the Bureau of Workers’ Compensation pays benefits to the worker in the form of medical expenses and/or loss of income, the Bureau has a right of subrogation against both the party at fault and the injured worker. 

The bases for the constitutional challenge were fairly complicated and beyond the scope of this post.  Suffice it to say that the statute has been upheld, so the injured worker is strongly advised to retain a lawyer to help navigate the murky waters of this statute.

TJB’s Take:

The current workers’ compensation subrogation statute is actually the General Assembly’s third try at passing an essentially fair statute.  Two prior attempts failed in that the Ohio Supreme Court held them unconstitutional.  The current statute has the exact same flaws that the prior statutes had, but the current court did not recognize this, probably because they genuinely do not understand the new statute–it is fairly convoluted. 

Word to the wise:  Retain a trial lawyer if you find yourself in a position like this. 

Jeff Beausay, Trial Attorney 

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Personal Injury Damages Caps Upheld by Ohio Supreme Court

In 2005, the Ohio General Assembly passed several “tort reform” measures, the most controversial being the limits on the amount a jury can award in personal injury and product liability cases.  See RC 2315.18.  Under the 2005 rules, a plaintiff cannot recover more than the greater of (1)$250,000 or (2) three times the economic damages up to a maximum of $350,000, or $500,000 per single occurrence.  These limits do not apply to catastrophic injuries, defined as ”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 the injured person from being able to independently care for self and perform life-sustaining activities.”  These changes went into effect on April 7, 2005.

This statute was challenged on constitutional grounds.  In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, the Ohio Supreme Court held that this and other tort reform provisions do not violate the Ohio Constitution.

TJB’s BS:

Let’s not overreact.  These limits DO NOT apply to medical malpractice cases, wrongful death cases, or cases involving catastrophic injuries (as defined in the statute).  It would be unusual for a jury to award noneconomic damages (e.g. pain and suffering) in excess of $250,000 if the injury is not catastrophic.  So, in reality, this statute will not affect that many cases.

Also, bear in mind, the Ohio Supreme Court, as presently constituted, is a “strict constructionist” court, meaning that the Justices tend to uphold statutes passed by the General Assembly (Congress), unless the statute clearly violates the Ohio Constitution.  Therefore, if the people of Ohio strongly disagree with these tort reform measures, they need to elect different politicians who are more “plaintiff friendly.”

The more interesting constitutional question will arise in the medical malpractice context, where the damages caps have no exception for catastrophic injuries.

Jeffrey Beausay, Trial Lawyer

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