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Why you may not be able to find an attorney willing to take your medical malpractice case

I get many calls from people seeking compensation against a doctor or other health care provider for medical malpractice or negligence.  Common scenarios are failure to diagnose an illness, mistakes made during surgery, or failure to properly treat an illness.  2000256

Some callers are frustrated because they cannot find an attorney willing to take their case.  Just because an attorney will not take your case does not necessarily mean that you were not wronged or harmed.  It could mean that the damages you suffered are not severe enough to make the case economically viable.

Under Ohio law (and many other states), there is a cap on non-economic damages for medical malpractice arising out of acts or omissions of a medical provider. Non-economic damages are more commonly referred to as damages for “pain and suffering.”  The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43. This law was enacted in order to protect medical professionals from exorbitant jury awards.

What this means is that a plaintiff is seriously limited in the amount of compensation he or she can recover against a medical provider unless there has been permanent and substantial physical deformity (i.e. severed limb) or death.  Knowing that plaintiffs must overcome this hurdle, hospitals and doctors are more likely to take cases all the way to trial rather than settle them out of court.  These providers and their attorneys know that the cost of taking a case all the way through trial will often not justify the eventual award.  A plaintiff and his or her attorneys run the risk of getting no recovery whatsoever after litigation costs and medical bills are paid off.  In other words, the ends do not justify the means.  Clients will end up with very little money in their pockets, and will be disappointed.

The result is unfortunate for people who have been harmed by doctors or health care providers, but have either recovered or not suffered what the courts consider “permanent and substantial physical deformity.”  Often, clients will ask “so, the doctor can just get away with this?”  The answer is yes and no.  Doctors and health care providers can always be reported to the various licensing boards that oversee their activities.  There may be an investigation and subsequent discipline or loss of license.  However, in answer to the question of whether the doctor/medical provider can avoid paying compensation to an injured plaintiff based upon the laws that support the medical profession, the answer as of now is yes.

 

Do you need errors and omissions (E&O) insurance?

Professional liability insurance, called errors and omissions or malpractice insurance, covers businesses and individuals who offer advice or professional services, such as doctors, lawyers, architects and accountants. The coverage protects policyholders from financial losses due to negligence.

Commercial general liability insurance typically covers bodily injury and property damage. E&O insurance differs in that it covers claims of negligence or harm that results in financial losses or other damages.

Whether you’re at fault or not, lawsuits can be both time-consuming and pricey. To determine whether you need this coverage, look at your industry, clients, contracts and the potential for harm. Because the potential for harm (and lawsuits) is greater for certain professions, like legal and medical, errors and omissions insurance is required by law in some states or may be workplace policy.

For other businesses, however, the decision is up to owners and their views of the potential risks versus the cost of obtaining errors and omissions insurance. Decide about E&O insurance after looking into the following points:

Contractual Requirements — Is it common in your industry to supply proof of insurance to clients in order to secure contracts? This is common practice in industries where actions could result in significant financial losses.

Cost Feasibility — Does the benefit of having coverage outweigh the cost of the insurance? In some cases, if the work you do places you at low risk, the cost of the insurance may be more than you would earn from the contract.

Potential for Claims — What’s the likelihood that your professional services can cause harm or that clients could perceive that they have been harmed? For example, a mistake made by a doctor, lawyer or architect could have significant financial implications, making it prudent for professionals in particular industries to protect themselves with E&O insurance.

If you would like to talk to an agent about purchasing E&O insurance, I can help refer you to someone. Someone I work with often is Mike Bambrick. Give him a call.

Mike Bambrick Insurance
Mike Bambrick Insurance
5001 Mayfield Rd. Suite 217
Lyndhurst, OH 44124
Phone: (216) 291-9850

Slipping and Falling on Ice and Snow

A-Guy-Slipping-On-IceIt’s a winter day in Northeast Ohio and you’re walking on what appears to be clear ground. Then, suddenly, your feet slide out from under you on “black ice” and you fall and break your wrist.

Who’s at fault? Can you sue for your damages and injuries?

Under Ohio law, there is generally no recovery for injuries caused by a slip and fall on a natural accumulation of ice and snow. The courts have held that if you live in the region, you should be aware that black ice could potentially be anywhere.

However, where a landlord contractually agrees to remove ice and snow and does not do so, then the landlord may be liable. For example, many shopping center and office building leases provide that the landlord is responsible for removing ice and snow. Some courts have held the landlord responsible for failing to do so, and you may sue for your injuries and damages.

Where there is an unnatural accumulation of ice and snow, then the property owner may be legally liable for injuries caused by that ice or snow. Examples include pavement defects which allow water to accumulate and then freeze, drainage pipes which cause an unnatural flow into an area; and down spouts which do the same.

Failure to provide appropriate guard rails on exterior stairs or ramps, which the property owner has reason to know will become slippery or icy in winter and become hazardous to users, may make the owner or tenant in control responsible for your injuries.

Open manholes or gratings which are in a walkway and covered by snow may create liability where the property owner knew or should have known of the concealed hazard and failed to warn pedestrians.

Condominium Associations and others responsible for the maintenance of common areas may also be responsible for their failure to keep these areas free of ice and snow, where the By-Laws give them responsibility for doing so.

Recovering for injuries on ice and snow is difficult in this region. The facts of each case are different and require expert evaluation. Please call us to answer any questions you may have regarding injuries you sustained from slipping and falling on ice or snow.

5 Important Rules for Reading An Insurance Policy

As a former insurance defense lawyer, I have read so many insurance policies, Isokol-insurance can quote most of the exclusions in my sleep.  For most consumers, however, the insurance policy seems overwhelming to read.  It is important to always read your insurance policy. However, if you do not have the time or desire to read your entire insurance policy (whether it be homeowners or auto), you should at least make sure to determine the following:

5 Important Rules for Reading an Insurance Policy

  1. Determine who qualifies as an insured:  You want to make sure that the people who you believe are covered are in fact covered.
  2. Read the exclusions:  Sometimes it seems like an insurance policy excludes more than it covers.  It is important to know what is excluded from coverage. This way, you can purchase additional coverage if you think you might need it.
  3. Read all Endorsements: Endorsements are forms added on to a policy which will change or modify coverage.  You will sometimes receive Endorsements in the mail when you renew a policy.  It is important to know whether an Endorsement affects your coverages.
  4. Read and understand the definitions of specifically defined terms: Definitions in insurance policies mean everything. The insurance company may be defining a term in a way that has a completely different meaning than you think it does.
  5. Confirm the coverage limits are adequate for the loss:  This is critical. Too many times, I’ve seen clients get in accidents or get sued and not have enough coverage to compensate the injured party.  Often, just a small increase in premium would have provided the client with the coverage they needed.  If you are not sure how much coverage you need, talk to a qualified attorney or insurance agent.

While the above items are important to read, remember that there is no shortcut to reading any legal document.

 

Duties owed in an attorney/client relationship go both ways

Many clients believe that once they hire an attorney, the attorney is bound by handslaw to represent them zealously until the case is concluded.  This is true to an extent.  Before a lawsuit is filed, an attorney may actually terminate his/her relationship with a client for any reason or no reason.  As long as the client is notified in writing and properly advised as to how to proceed, an attorney is not bound to a client.

However, the relationship changes somewhat where a lawsuit has been filed.  In such cases, an attorney must seek court approval before terminating a relationship with a client. This is done by way of a Motion to Withdraw, and must be based on “good cause.”  The client must be served with a copy of the Motion by certified mail.

Good cause has been shown in situations where a client fails to cooperate with his/her attorney (including failing to respond to phone calls, e-mails, or letters), a client fails to pail his/her legal bills, a client is untruthful with his/her attorney, or where the attorney and the client have a fundamental disagreement as to the handling of the case.

I was recently forced to file a Motion to Withdraw in a case where my client would not return phone calls, e-mails, texts or letters.  This went on for several months.  Indeed, without the client’s cooperation, I was unable to adequately respond to discovery requests on his behalf, or to properly litigate the case.  Much to my client’s disappointment, my Motion was granted.

Before hiring an attorney, it is important for a client to know that in a lawyer/client relationship, not only the lawyer is bound to fulfill certain duties.  The client also owes duties to his/her attorney.  Such duties and responsibilities include being:

  • Truthful with your lawyer
  • Cooperative with and responsive to your lawyer
  • Available to your lawyer and attending legal proceedings, as requested
  • On time with paying your legal bills in a timely manner

These duties and responsibilities may be implied even without a retainer agreement that expressly commits them to writing. In fact, a failure to comply with any of these duties may result in a lawyer terminating the relationship.

If you think your lawyer committed malpractice, you need to take action quickly

The Ohio Statute of Limitations for legal malpractice is one year, but the statutestressed-lawyer can be tricky.  A question that always arises is in these cases is when the one-year countdown begins to run.  Many people who suffered harm from their attorney’s actions or inaction and who wish to file a lawsuit against their attorney for legal malpractice may be disappointed to learn they waited too long.

A “statute of limitations” is a law that identifies the maximum amount of time, usually a number of years, a person can wait before filing a lawsuit.  If a person files a lawsuit beyond the time identified in the statute of limitations, that person runs the risk of having his or her lawsuit dismissed.  Think of the statute of limitations as a countdown before someone’s potential lawsuit expires.  The idea behind a statute of limitations is that people cannot reasonably be expected to defend themselves after so much time has passed because evidence may be destroyed, memories fade, and it becomes very difficult for a court to determine what really happened.  On the other hand, people who have been harmed should have enough time before filing a lawsuit to realize they’ve been somehow harmed, to figure out whether or not they have a good case, and to discover who the responsible parties are.

The Ohio statute of limitations for legal malpractice begins to run when either of two events occurs.  If both events occur, it is the later event that starts the statute of limitations running.

One event that begins the countdown is when the client made or should have made the connection that the harm he or she suffered is related to something his or her attorney did or did not do.  Sometimes, but not always, clients should make this connection immediately when they experience the harm, like perhaps when the client loses his or her case.  Sometimes however, because the legal process or the law itself is so complex, clients are not expected to have made this connection until they discover later on something that their attorney did or did not do which, for example, led to the client ultimately losing his or her case.

The other event that begins the countdown or statute of limitations to run on a legal malpractice lawsuit is when the attorney-client relationship ends.  Often, the end of an attorney-client relationship is easy to determine because attorneys will send a letter to the client indicating that their relationship has ended.  In any case, for an attorney-client relationship to end, either the attorney or the client typically must do something that shows they behaved in a way that goes against how an attorney and a client usually behave towards one another.  For example, a client might meet with another attorney on the same matter.

The best way to make sure the Ohio statute of limitations for legal malpractice does not doom a legal malpractice lawsuit is to contact a legal malpractice attorney as soon as the client discovers his or her current attorney may have done something wrong.  Also, so that it does not become too late to file a legal malpractice lawsuit, clients should contact an attorney who is experienced in handling legal malpractice cases, like Roni Sokol of The Sokol Law Firm, because they are likely to understand the ins and outs of the statute of limitations.

 

Protect yourself from liability on Halloween

 

Tonight is the night that you might have lots of little ones visiting your front happy halloweendoor to get candy.  Halloween is a wonderful time of year.  However, what most people do not think about is that when the trick or treaters come  onto your property, you could potentially be held liable for any injuries they sustain.  If your porch light is on and you welcome the children to the front door, the children are considered invitees.  This is a legal term which increases the risk of liability for a homeowner.  Because of this relationship, the homeowner owes the candy seekers the level of “reasonable” care that falls under ordinary negligence. Failure to do so can subject the homeowner to legal liability.  Examples of this would be injury caused due to the failure to warn of a loose brick or an unstable railing.

There are a few things you should do to protect yourself in preparation for your small guests:

  • Make sure there is a clear path from the street to your door. Make sure there is enough space for people to walk.
  • Have the area well-lit, especially where steps are involved.
  • Don’t have any hazards in the way, such as wires, hoses or other objects that a child could trip over.

Make sure your homeowners or renters policy has enough liability and medical coverage. We recommend having at least $5,000 in Medical Payments Coverage and having at least $300,000 for liability.  If someone sues you or there is a monetary judgment against you due to an incident, your homeowners’ insurance policy should cover your costs of an attorney and the amount of any settlement or judgment.

Have fun tonight and stay safe!

 

Slippin’ and a slidin’ – not always fun

slip_n_slide1Many children of the 1960s and 70s have fond memories of the Slip ‘N Slide, manufactured by Wham-O®. The Slip ‘N Slide was first introduced in 1961 as a children’s toy. The toy is a long sheet of thin plastic, flanked lengthwise on one side by a heat-sealed tubular fold. The tube can be attached to any ordinary garden hose. Water runs through the tube and out small perforations, spraying onto the sliding surface. The Slip ‘N Slide then becomes very slippery, enabling users to dive onto the plastic head first and slide the length of the sheet. While the toy was intended for use by children only, many adults also took pleasure in sliding. Some of them suffered significant injuries.

Wham-O® discontinued the product in the 1970s after three people broke their necks. But then in 1982, a new company purchased Wham-O® and its entire product line and reintroduced the Slip ‘N Slide. Sure enough, more people broke their necks, suffering quadriplegia and paraplegia.

Lawsuits brought the danger of the Slip ‘N Slide to public attention, and as a result the company stopped making the product, recalled products from retail shelves, and issued a safety alert. So, why do these Slip ‘N Slides keep re-appearing? We see them on the shelves at Target, Wal-Mart and Toys R Us®. Not only that, but Slip ‘N Slide has evolved from a simple single rider slide into double and triple rider slides with new water effects.  Millions of dollars are made from the sale of these products.

One can only surmise that these products went back on the market because the profits generated from the sale of these toys significantly outweigh the risk of a few lawsuits. In an attempt to protect themselves from liability, the manufacturer warns that only children use the toy due to the risk of back and neck injuries when teenagers and adults use it. Indeed, should you purchase a Slip N’ Slide, you will notice safety warnings are slathered all around the box in large, bold print. Do these warnings shield the manufacturer from liability? Not necessarily, but they do give the manufacturer the opportunity to argue that the injured party was negligent in his/her use of the product, thereby potentially lessening the amount of any award or settlement.

If you do own a Slip ‘N Slide, we would recommend that you make sure that no teenagers or adults use it and make sure that children are using it correctly. Also remember that should a person use a Slip ‘N Slide on your property and become injured, you could also be personally liable for their injuries.

 

How consumers get cheated by anti-stacking laws

134021_coinsMany consumers think of insurance companies as organizations that take our hard-earned money and then abandon or low-ball us when we need them. Fewer of us realize that in one area of automobile insurance, Underinsured Motorist Coverage, the current state of the law in many states, including Ohio, prohibits insurance consumers from getting the protection for which they have been charged and paid. The law makes it legal for the insurance carriers NOT to give their customers the protection they believed they purchased. In short: We don’t get what we paid for.

Unlike liability coverage mandated by the State, the purchase of Underinsured Motorist Coverage is voluntary. When a motorist buys this benefit, it is to secure financial protection if they are hit by a motorist carrying a very small insurance policy that fails to cover the extent of their injuries. Consumers of this insurance product seek to make sure their medical bills and lost earnings will be compensated and they will not incur their own out of pocket costs because of the fault of another.

The problem is that as the law stands now, insurers have the right to reduce the amount of payable loss. This is referred to as “anti-stacking.” Under the law, insurance companies do not have to provide the full measure of financial protection many consumers believed they were paying for under such policies, but instead they get an offset for the amount paid by the wrongdoer’s insurance.

Consider the following example: You are injured in a car wreck and your medical bills are $125,000. The driver who caused the wreck has only a $25,000 policy. You have purchased $100,000 in Underinsured Motorist Coverage. One would think you would be compensated with the $25,000 from the at-fault driver AND collect the $100,000 dollars from the policy you purchased. Wrong! In this case, the insurance company gets a $25,000 “credit” for the amount paid by the other driver. It only has to provide you with $75,000 for your bills. You come up $25,000 light.

The scenario can be even worse if your Underinsured Motorist Coverage limits match the at-fault driver’s liability limits. Consider this application of the law: as a result of an accident you have medical bills of $200,000. The person who caused the wreck has a $100,000 policy. Your policy provides for $100,000 in underinsured coverage. Because both parties to this accident have equal policy limits of $100,000, your insurer does not have to pay anything. The total payout by your carrier is zero and you owe $100,000 in medical bills. You get absolutely no benefit from a policy for which you paid good money.

How can consumers get around this law until it changes? We often advise clients that they should maintain ample Underinsured Motorist Coverage limits because of the number of at-fault drivers who do not carry enough insurance. As long as your limits EXCEED the wrong-doer’s limits, you could be entitled to the extra coverage. Remember that Underinsured Motorist Coverage is probably the most important insurance you can buy to protect yourself in the event you are seriously injured in an accident through no fault of your own.