Sunday, December 28, 2014

Motor Vehicle Accident in Sylvania, Ohio

Motor Vehicle Accident in Sylvania, Ohio

Nicholas Kubiak v. Farmers Insurance of Columbus, No. CI13-1887

An interesting motor vehicle accident case out of Sylvania, Ohio involving uninsured motorist coverage was decided in Lucas County, Court of Common Pleas, Ohio in Judge Denise Ann Darn's courtroom on September 23, 2014. The case involved a head on collision car accident on Whiteford Road in Sylvania Ohio. The Plaintiff claimed shoulder, leg, neck and back injuries as a result of the accident. The Plaintiff also claimed $27,000 in medical expenses and sought damages for pain and suffering. Following a two (2) day jury trial, the jury returned a verdict of $17,508 over and above the policy limits of the at fault party’s insurance coverage of $12,500.

The uninsured motorist carrier's offer was $2,500. This is a prime example of why it is so important to contact an attorney immediately to represent you with your personal injury case resulting from a motor vehicle accident. The trial of the case by an experienced Toledo Ohio personal injury lawyer resulted in an additional $15,000 in damages being awarded to the Plaintiff in this case.

Law Office of Charles S. Herman
411 North Michigan Street, Suite 300 
Toledo, Ohio 43604
Phone: 419-244-7500
Fax: 419-244-7805

Wednesday, November 19, 2014

Ohio Medical Malpractice - $14,500,000 Verdict - Birth Injury to a Child

Ohio Medical Malpractice - $14,500,000 Verdict - Birth Injury to a Child

An interesting case out of Cleveland, Ohio recently was decided with a verdict of $14,500,000. The case involved an Ohio medical malpractice claim based on negligent treatment by an OB-GYN and a birth injury to the child because preterm labor was not properly managed. The child was born via C-section and was severely asphyxiated at birth and required resuscitation. The child was admitted to the hospital and remained there for 113 days. The child suffered permanent brain damage, cerebral palsy and significant neurological deficits, resulting in developmental delays.

Prior to the actual birth, the child’s mother presented to the hospital at 21 weeks gestation. She was in preterm labor. The child’s mother returned to the hospital on two additional occasions and was admitted for treatment of preterm labor. Her condition was managed with anti-labor medications, bed rest and fetal surveillance.

The child’s mother was discharged for the third time, and six days later, her membrane ruptured and she returned to the hospital in active labor. Initially, the electronic fetal monitoring showed no fetal distress. Within hours, the electronic fetal monitoring reportedly showed repetitive variable decelerations that became deeper and more frequent. Imminent distress was eventually noted. After noting fetal distress and arrest of labor, the OB-GYN performed an emergency C-section.

Plaintiff proved that defendants were negligent in failing to keep the mother hospitalized to properly manage her pregnancy with anti-labor medications and fetal monitoring during her earlier admissions, which she maintained would have prolonged the pregnancy and that the defendants were negligent and breached the accepted standards of obstetric care in failing to deliver the child in a timely manner once delivery became imminent.

Damages were awarded for past and future expenses, including the cost for lifelong living assistance, and compensatory and punitive damages.

Wednesday, October 15, 2014

Nursing home chain settles federal case for $28M

Nursing home chain settles federal case for $28M
Arbors of Sylvania named in agreement

Arbors of Sylvania named in agreement

Issues regarding nursing home liability may arise in case of personal injury or wrongful death of a resident of the nursing home or a visitor to a nursing home.

A nursing home, or its owner, can be held liable under general principles of tort law for negligent acts or omissions respecting the care of residents.  In an action for injuries negligently inflicted on a resident of a nursing home by a home's owner or operator or its employees, the injured plaintiff must plead and prove the traditional elements of negligence:

  1. The defendant owed a duty of care to the plaintiff;
  2. The defendant breached or violated that duty;
  3. The plaintiff sustained injury; and
  4. There was a causal connection between the defendant's conduct and the resulting injury.

In a wrongful death action, it is not necessary to prove that a decedent would have survived if not for the defendant's negligence. It has been held that if a defendant accelerates a decedent's death by even an hour, minutes, or seconds, it may be liable for such death, and if a defendant's negligence caused the decedent additional pain and suffering, it could be liable to decedent's estate.

Liability may arise because of negligent personal supervision and care, negligent maintenance of premises, or negligent selection or maintenance of equipment.

A nursing home is liable under the doctrine of respondeat superior for any tortious acts of its employees that are committed within the scope of the employee's duties. To prove such liability, the injured resident must show that at the time of the infliction of his or her injuries the employee of the home was acting on its behalf and performing services in the furtherance of its business.

If you believe that you or someone you love has been injured as a result of a nursing home's negligence, contact me for a free consultation.

Friday, October 3, 2014

Pharmaceutical Liability

 Pharmaceutical Liability

Moore v. Covenant Care Ohio, Inc., 2014-Ohio-4113

In Moore v. Covenant Care Ohio, Inc., 2014-Ohio-4113, the Ohio Supreme Court reversed the Lucas County Court of Common Pleas in Toledo, Ohio. This case was a wrongful death case involving a nursing home resident who ended up with a pulmonary embolism as a result of her medications for blood clots not being properly dispensed. The providers of medical services, including the providers dispensing pharmaceuticals, have a duty to provide pharmaceutical services to the patient and a duty to exercise reasonable care in providing the pharmaceutical services and in the dispensing and labeling of medicines. The breach of this duty can result in pharmaceutical liability under Ohio wrongful death law. In this case, the Lucas County Court of Common Pleas in Toledo, Ohio had granted a motion for summary judgment and also excluded a pharmacy expert’s report and the Court of Appeals reversed and allowed the opinion from the expert and said that there were factual issues remaining and that summary judgment was not proper.

Monday, September 22, 2014

Ohio Premises Liability - Identifying the Proper Defendants

Ohio Premises Liability

Identifying the Proper Defendants

Identifying the proper defendants is critical to the prosecution of any personal injury action, and is especially true in an Ohio premises liability claim. Many times, owners of real property will insulate themselves from liability by creating multiple layers of corporations or limited liability companies that manage the property, own the property, and operate the business on the property. Some, but not all, of these companies will have assets reachable in an Ohio premises liability claim. For this reason, it is important to hire an Ohio premises liability attorney who will conduct the necessary investigation to identify the party or parties that may own, maintain, or otherwise control the property.

Tuesday, September 2, 2014

10 Things You Want To Know About Medical Malpractice, By Demetrius Cheeks

Great article about medical malpractice claims written by Demetrius Cheeks while interviewing Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen & Allen.

10 Things You Want To Know About Medical Malpractice

By Demetrius Cheeks

Fact: According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the U.S.—right behind heart disease and cancer.
In 2012, over $3 billion was spent in medical malpractice payouts, averaging one payout every 43 minutes.
Alarming, right?
But there are things that you can do to avoid becoming an unfortunate part of these statistics—to be your best health-care advocate. Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen & Allen, should know.
Named as one of the state’s “Super Lawyers,” the seasoned trial attorney has won some of the largest personal-injury awards on record in the state, and recently secured the largest malpractice award in Virginia state court history.
LearnVest sat down with Konvicka to discuss troubling trends in medicine and hear his advice on how people can lessen their risk of encountering medical malpractice.

LearnVest: For starters, what’s the legal definition of medical malpractice?

Jason Konvicka: Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances. In essence, it boils down to whether the provider was negligent.

How do you determine if someone is the victim of medical negligence?

A malpractice claim exists if a provider’s negligence causes injury or damages to a patient. However, experiencing a bad outcome isn’t always proof of medical negligence. Also, on occasion, health-care providers will inform a patient that the person has received negligent medical care from a previous health-care provider and—presumably in an effort at complete honesty—will sometimes tell a patient that they, themselves, have made a mistake.
Another motivating factor: A quick, honest “apology” might prevent a future claim, or provide an opportunity for a settlement without the need for litigation. Insurance companies typically want to settle with an injured person directly if they can, and this allows them to do so before the full extent of injuries are known, as well as preventing the injured person from hiring an attorney who could increase the settlement value of the claim through their representation.
It’s vital to note, however, that the prosecution of medical malpractice cases— in addition to having a high likelihood of failure—can be extremely expensive, stressful and time-consuming. It’s estimated that medical errors kill roughly 200,000 patients in the U.S. each year. Yet only 15% of the personal-injury lawsuits filed annually involve medical-malpractice claims, and more than 80% of those lawsuits end with no payment whatsoever to the injured patient or their survivors.
Consequently, most experienced medical malpractice attorneys will not pursue a case unless the injuries and damages documented in the records— after they’ve been reviewed by an expert in the pertinent specialty—are substantial and justify it.

What should you do if you suspect that you’ve been subjected to negligent care? Is there a statute of limitations?

Contacting a seasoned malpractice attorney should be the first step. A thorough review of the case details—this includes everything from securing pertinent medical records to interviews with the patient, family members and friends—should be conducted by the attorney to determine whether the case is actionable.
Statutes of limitation—deadlines by which a lawsuit must be filed or be permanently barred—differ from state to state, as do the procedural requirements that must be met before a medical-malpractice lawsuit is filed. It’s always best to seek guidance from an attorney licensed in the state where the alleged malpractice occurred.

What can patients do to lessen the likelihood that they’ll experience medical malpractice?

Being proactive about medical care is undoubtedly the best step. Patients should do research to understand their health condition, and document their symptoms. They should ask health-care providers a written list of questions that they feel are important, and expect—indeed, demand—full and complete answers.
It’s also critical not to allow yourself to be intimidated by the medical system. Speak up and advocate for your own well-being. If patients sense that something is wrong, they should tell—or ask—their health-care providers. Although it’s important to trust your doctor or nurse, it’s also important to listen to your body ... and use common sense. Also advisable: Have a family member or friend accompany you on important visits to health-care providers.

In your 20 years of practice, have you detected any shifts in the handling or perception of medical malpractice?

Proponents of “tort” or “malpractice” reform often argue that there are too many medical-malpractice claims. In reality, the number of claims is declining.
Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt—those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, such public programs as Medicare or Medicaid to pay their future medical bills—leaving the cost of medical malpractice to the public instead of the responsible party.

What are some of the most common reasons why legitimate medical-malpractice claims go unexplored?

Patients choose not to pursue valid medical-malpractice claims for numerous reasons: Some are concerned that other doctors will learn of their cases and refuse to treat them. Some fear—incorrectly—that it will lead to an increase in the cost of their medical care. And others forgo valid claims due to the perceived personal and financial costs associated with litigation.

Are there certain medical procedures that are consistently at the root of medical-malpractice suits?

In my experience, it’s the health-care provider’s mental state more than the type or severity of a given procedure that’s relevant to whether a mistake occurs. Complacency often leads to errors. Likewise, “tunnel vision,” or the failure to look at the big picture, can also lead to medical mistakes.

What types of cases have been the most illuminating for you?

Although the medical school adage of “treat the patient and not the test” has value, it’s also important for health-care providers to carefully assess the information provided by the tests that they order. I’ve witnessed many instances in which highly abnormal test results were either interpreted incorrectly or disregarded by physicians—sometimes with fatal consequences.

Have your experiences as a malpractice attorney affected your perception of doctors?

If anything, I have more respect for physicians and the challenges that they face. However, I don’t believe that doctors should be treated differently than others when they make mistakes that cause serious harm to patients.
With regard to the medical establishment, I’m a bit more jaded. Hospital systems and health-insurance companies significantly impact the quality of medical care that patients receive, and, in my opinion, that impact is not always for the best.

Any final parting words of advice?

Don’t be afraid to get a second opinion! And don’t be afraid to find a new doctor if you don’t feel that you’re receiving proper medical care. Your health is too important to place in the hands of a provider who hasn’t earned your confidence, isn’t answering questions or isn’t giving you—or your condition— adequate time and attention.

Thursday, August 21, 2014

What is the Value of Your Claim Following an Automobile Accident in Toledo, Ohio

What is the Value of Your Claim Following an Automobile Accident in Toledo, Ohio

It is a difficult decision whether or not to accept a low ball offer from the at fault party's insurance carrier when you've been injured in an accident. So how is it that a determination is made regarding the value of your claim following an automobile accident? A claim is valued and settled based upon an estimate of what a jury would most likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expense and wage loss, plaintiffs may be entitled to money damages for "personal injuries" including pain, suffering and loss of enjoyment of life. Severe injuries requiring substantial medical treatment, extended absences from work and permanent physical or mental impairments may command substantial compensation. When a claim is settled, both sides should have a clear "before and after" picture of the injuries and how they have affected the victim's life. The "difference" is the value of the claim. For example, a previously healthy, productive, young worker injured severely by an obviously culpable defendant will recover substantial compensation. This is especially true where the victim has undergone substantial medical care, extended loss of earnings and is facing a future of impaired earning capacity, disfigurement, pain and suffering. On the other hand, the claim of an older person injured under questionable circumstances resulting in subjective complaints that can be established only by the word of the claimant may be substantially discounted both by a jury and a claims adjuster.

Here is a synopsis of a case that was recently settled in Toledo, Ohio (Lucas County)

Plaintiff Attorneys: Drew R. Masse, Gallon, Takacs, Boissoneault & Schaffer, Co., LPA, Toledo, OH and Jeffrey Swiech, Gallon, Takacs, Boissoneault & Schaffer, Co., LPA, Toledo, OH

Defense Attorneys: Robert Lee Austria, Law Offices of Craig S. Cobb, Cleveland, OH (Mack Moon) Kathleen M. Davis, Ritter Robinson McCready & James, Ltd, Toledo, OH (State Farm Mutual Automobile Insurance Co.) Shannon J. George, Ritter Robinson McCready & James, Ltd, Toledo, OH (State Farm Mutual Automobile Insurance Co.)

On Sept. 21, 2012, plaintiff Raynard Armstrong, 50, a production laborer, was operating his vehicle in Toledo. He slowed for heavy construction traffic and was rear-ended by a vehicle driven by defendant Mack Moon. Armstrong claimed neck, back and shoulder injuries as a result of the impact. Armstrong filed suit against Moon for negligence. Armstrong alleged that Moon failed to maintain an assured clear distance ahead and failed to keep a proper lookout. State Farm Mutual Automobile Insurance Company, which had paid medicals on Armstrong's behalf, was named for subrogation purposes. Defendant Moon admitted liability for causing the accident.

Injuries/Damages: back and neck; rotator cuff, injury (tear); shoulder; soft tissue; strain, cervical; strain, lumbar

Armstrong presented to a local emergency room later on the day of the accident with complaints of neck, back and right shoulder pain. He was diagnosed with soft tissue cervical, lumbar and sacral injuries, as well as a right rotator cuff tear. He did not require surgery and was able to return to work.

The parties stipulated to medicals of $7,457.40 ($4,075.09 under Robinson v. Bates) and $4,530.96 for lost wages. In addition, Armstrong sought damages for pain and suffering.

Moon contended that Armstrong was not seriously injured and that his complaints were not necessarily related to this accident.

Result: The jury determined that the plaintiff's damages totaled $6,000

Demand: $33,000

Offer: $2,494.91

Trial Details: Trial Length: 2 days

Trial Deliberations: 2 hours

Jury Vote: 8-0

Monday, August 18, 2014

Tolling of Statute of Limitations When Defendant Absent from the State of Ohio

There was one case this date from Lucas County, Ohio, Tremp v. Mash - 2014-Ohio-3516, which dealt with the statute of limitations in a sex abuse case against a teacher. The minor waited almost 30 years before filing but made the argument that the teacher had moved out of the State. The Court held that still was not sufficient proof of tolling of the statute and affirmed the summary judgment for the defendant teacher which dismissed the case and the ruling was 3 to 0. It is a good discussion of the statute in regard to tolling for defendants who are absent from the State of Ohio.

Thursday, August 14, 2014

Steps to Take After an Automobile Accident

Steps to Take After an Automobile Accident

Step #1: Stop your car. Never leave the scene of an accident no matter how minor you believe the accident was. If you fail to stop you could be criminally prosecuted. Stop your car as soon as safely possible without endangering any person, property, or disrupting traffic.

Step #2: Warn oncoming traffic. Do whatever is necessary to warn oncoming traffic in order to prevent further accidents and protect the victims. At night, use flares, a reflector or a flashlight. You may be liable for damages to approaching vehicles unless they are properly warned. Vehicles should not be left in a position of danger on a highway if they can be moved. Passengers should not remain in such a vehicle.

Step #3: Aid the injured. If anyone has been hurt, note your location and call a doctor and/or ambulance. Do not try rendering first aid if you are not proficient at it. Moving an injured person may aggravate the injury. Keep the person warm until skilled help arrives. If there is severe bleeding, try to stop it with direct pressure.

Step #4: Call the police. The police can handle any emergency and investigate the accident. The police report of the investigation may be helpful to you later if you are sued or if you decide to sue someone.

Step #5: Provide legally required information. State motor vehicle laws require the driver of any vehicle in the accident to give his name, address and vehicle license number. If you collide with a vehicle that is unattended, the law requires you to locate the operator or owner of the vehicle and tell him your name and address. If you cannot locate the owner, leave a written message stating your name and address and the circumstances of the collision in a conspicuous place, or in the unattended vehicle. Do not give any more information than the law requires. Do not comment on the cause of the accident or admit fault even if you think you were in the wrong. You may discover later that the other driver was equally or more to blame. No one has the right to force you to give an opinion as to the cause of the accident at police headquarters or elsewhere. You have the right to consult a lawyer before making a statement.

Step #6: Obtain protective information. Just as the law requires you to give certain information, you are entitled to the same information from other persons involved in the accident, i.e., passengers. In addition to the names and addresses of the persons actually involved, obtain the names and addresses of all witnesses to the accident. Witnesses may be important later if legal action becomes necessary. Make a note of the details of the accident, including the date and time, road conditions, weather conditions and the speed of all other cars.

Step #7: See your doctor. If you have any doubt at all about your own medical condition or that of your passengers, see your doctor immediately for an examination, and ask your passengers to do the same.

Step #8: File accident reports. Notify your automobile insurance company immediately. Cooperate with your insurance representative in their investigation. State law usually requires you to file a written report of any accident in which you were involved, which resulted in the death or injury to any person, and in most accidents where property damage of at least $1,000 value has occurred. Failure to file a report within ten (10) days may cause you to lose your license. To complete the accident report, you will need to note the following:
(a) Location of the accident;
(b) Time and date of the accident;
(c) Nature and extent of damages and injuries;
(d) Name, address, driver's license and vehicle registration numbers of any other drivers involved;
(e) Automobile insurance companies of all vehicle owners and drivers involved;
(f) Names and addresses of witnesses, including passengers;
(g) Locations of cars and pedestrians involved and their directions of movement, both before and after collision; and
(h) Condition of roadway, type of weather at the time of the accident and any other pertinent information.
Do not admit fault at this point. Remember to keep copies of all correspondence and reports for your records. Failure to comply with the law can be grounds for suspension or revocation of your driver's license or vehicle registration. If you fail to notify your insurance company of the accident in writing within a reasonable time, it could deny coverage. Send written notice to your insurance company including the time, place and circumstances of the accident as well as the names of all injured persons including passengers, pedestrians, drivers and available witnesses.

Step #9: Obtain legal advice if you are arrested or issued a ticket. An arrest does not necessarily indicate liability for the accident. However, a statement of guilt or a plea of guilty to a traffic ticket may be used as an admission. It is important that you obtain legal advice if you are arrested. A lawyer can help you assess your situation. If you decide to contest the ticket, you are entitled to a trial.

Step #10: Determine your rights. Consult an attorney if you are uncertain about your rights. Your insurance company will always be represented by trained adjusters or by an attorney. Ignore any attempt by a representative of the other party to influence you against the advice of your own attorney.

Step #11: Inform your insurance company of any claims. State law requires that all motor vehicles be covered by liability insurance. You must also carry proof of insurance. Violations of this provision will result in significant financial penalties and loss of driving privileges. Refer all persons making claims against you to your insurance company. Make no payments, or promises to pay, to any claimant. Immediately send your insurance company all legal papers served on you. You may have insurance coverage under more than one policy. Claims or damages to your vehicle will be covered by your own collision or comprehensive insurance policy, if you have one. If another motorist is at fault in an accident, you retain the right to sue the person for property damage.

Step #12: Recover damages. If you lose work, sustain injuries or have other losses, you may be entitled to reimbursement under your own policy. You may also be entitled to damages from the other party to the accident. You may be entitled to recover money for the following:
(a) Nature, extent and duration of injuries;
(b) Pain and suffering from injuries;
(c) Disability, both temporary and permanent;
(d) Reasonable expenses resulting from injury, including medical and hospital expenses;
(e) Loss of income; and/or
(f) Value of damage to property.

Monday, August 11, 2014

Automobile Accidents are the Number One Source of Personal Injury Lawsuits

Automobile accidents are the number one source of personal injury lawsuits. A person is liable to the injured person if he was negligent in causing the accident. Persons who act negligently do not intend to cause an injury to another person or to their property. Nonetheless, liability for the injures comes from the failure to act like a reasonable person would have acted. Every driver has a duty is to use reasonable care to avoid injury to anyone that he or she meets on the road. If a driver fails to use reasonable care and, as a result of that failure, injures you, then that driver is liable to you for those injuries.

Thursday, August 7, 2014

What are the Grounds for Personal Injury Lawsuits?

Personal injury lawsuits will compensate a plaintiff injured because of someone else's act or failure to act. If you can prove that the defendant was liable for damages, and the nature and extent of damages, the court will award money damages.

There are generally three (3) grounds for personal injury lawsuits:

1. Negligence is the basis for liability in most personal injury lawsuits. For instance, the driver who operates his car carelessly, the doctor who fails to follow accepted medical procedures or the store owner whose poor maintenance causes a customer to fall. Individuals or companies are liable if they were negligent in causing an injury. Their liability stems from careless or thoughtless conduct or a failure to act when a reasonable person would have acted. Conduct becomes "negligent" when it falls below a legally recognized standard of taking reasonable care under the circumstances to protect others from harm. A driver has a duty to use reasonable care to avoid injuring anyone he meets on the road. If he fails to use reasonable care and injuries to another are a result of this failure, he is responsible (or liable) for those injuries.

2. Strict liability holds manufacturers strictly liable for injuries from defective products without the need to establish negligence. Rather, the plaintiff must show the product was designed or manufactured in a manner that made it unreasonably dangerous when used as intended.

3. Intentional wrongs are the basis for holding a defendant liable for assault, battery, false imprisonment or intentional infliction of mental distress.

Tuesday, August 5, 2014

Statute of Limitations in Personal Injury Actions

The law in Toledo, Ohio and in the State of Ohio provides for statute of limitations in personal injury actions and other types of actions, such as car accident cases, property damage, medical malpractice, and contract disputes. One of the purposes behind such statute of limitations is to limit delay in bringing a cause of action to court against the person or company you believe is liable to you for injury or other compensation. The following website provides references to some of the statutes which govern the limitation of certain types of actions: