Articles Posted in Ohio

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The family of an Ohio woman was awarded nearly $4 million dollars in a wrongful death suit filed against the Ohio Department of Transportation (ODOT).

Awful story here. On December 26, 2008, a husband and wife and their two kids were returning home after visiting with family for the Christmas holiday. Traveling in two separate vehicles, the husband and daughter arrived at home. When his wife and son did not return, he retraced his route only to find his wife’s car off the road, against a fence. A tree had fallen on the car and medics were already on the scene. While the son was taken to a local hospital, the wife was pronounced dead at the scene.

The suit filed against ODOT claimed that they knew that the bank along that stretch of road was eroding, and that trees had been uprooted in the area. The tree that had fallen on the wife’s car had been leaning over the road, creating a hazard. The suit further claimed that ODOT had breached its duty to maintain the road and attend to any potentially dangerous situations.

The Court of Claims adopted a magistrate’s decision recommending judgment for the family of just under $4 million dollars. ODOT is still in the process of reviewing the circumstances of the legal decision, but has stated that they have no objection to the decision.

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If you rent a home or apartment and are injured as a result of a defect in or on the premises, the Ohio Landlord Tenant Statute may allow you to recovery for your injuries. This hasn’t always been the case. Previously, a landlord could escape responsibility for the defects in a dwelling.

Here’s what the statute says in plain English: A landlord is required to make all repairs and do whatever is necessary to keep the premises in a fit and habitable condition, and a landlord must comply with all building, housing, health, and safety codes. The law also requires that a landlord keep all common areas safe and sanitary as well. If your landlord violates this statute by failing to do what is required, and you can prove you were injured as a result, the landlord is automatically considered negligent.

But, there’s a big catch. It is the tenant’s responsibility to make the landlord aware of the unsafe condition. The case Schroades v. Rental Homes requires proof that the landlord either (1) received notice of the defective condition of the rental premises, (2) that the landlord knew of the unsafe condition, or (3) that the tenant made reasonable, but unsuccessful, attempts to notify the landlord. If a tenant fails to make the landlord aware of the problem, the landlord may not be held responsible.

These notice requirements are strict, and failure to provide proper notice often kills a tenant’s ability to recover. Here’s an example: A tenant complained to her landlord that the paint was peeling in her apartment, and that her grandchildren had lead poisoning. The landlord denied any knowledge of the existence of lead-based paint. At trial, the landlord argued that while the tenant did make him aware of the peeling paint, the tenant did not make him aware that the peeling paint was lead-based paint. The landlord argued he hadn’t been properly notified, and the Court agreed. The case was dismissed, and the tenant did not recover.

If the judgment seems harsh, it’s because it is. Contrast the previous case with Brown v. Dermer, a case from Maryland There, the Court held that knowledge of peeling paint in an apartment was sufficient to put the landlord on notice that there might be lead in the paint. The Court reasoned that the landlord could reasonably foresee the danger that was posed to the children living in an apartment that had peeling paint.

From where I stand, the Maryland Court’s reasoning was much more sound. I also believe the Maryland case had better evidence and was developed well at trial. I suppose it could have been the political bent of the courts too, certainly Maryland Court of Appeals’ judges are being appointed by more liberal governors than the red/blue state of Ohio which leads to different laws in both personal injury and landlord tenant.

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Suddenly, Ohio is the new go to source for interesting appellate opinions. Last week, the Ninth District Ohio Court of Appeals flipped a malpractice defense verdict, finding that the trial judge provided flawed standard of care jury instructions.

Quick factual summary in this tragic case: A 5-year-old boy is diagnosed with an ear infection. Continued symptoms bring him to the emergency room where clearly a bunch of errors occurred. I have no idea if these errors caused the boy’s death but they were screwing things up left a right. Bad documentation for his treatment, one of the nurses gave him the wrong saline to treat his dehydration, and so forth. He was transferred to the pediatric intensive care unit at Children’s Hospital (by all accounts a good hospital). They found a boy in shock that has progressed to acidosis. The boy is intubated. Doctor orders a echocardiogram. During the echocardiogram, the boy tragically went into cardiac arrest and died. The autopsy revealed the boy died of heart failure that resulted from a pre-existing narrowing of a coronary artery and a viral infection that had spread to his heart. Awful.

The parents filed a medical malpractice lawsuit alleging that their son’s death was caused the negligence of the doctors The hospital maintained that its screw-ups – some of which they admitted – did not cause the boy’s death.

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A divided Ohio Supreme Court found last week that defective construction claims for faulty workmanship against an insured brought by a property owner are not property damage claims caused by an “occurrence” under a commercial insurance policy because they are not fortuitous. I teach insurance law and we spend a lot of time in class thin slicing fortuity and occurrence. So, I found this case of particular interest. But if the details of insurance law don’t interest you, I would stop reading now.

Plaintiff and defendant contracted for plaintiff to build a manufacturing plant. Plaintiff sued when defendant refused to pay. Defendant alleged that plaintiff’s work was defective. Insurance company, Westfield (which I don’t think is an insurance company willing to fight for its insured anyway), refused to provide the plaintiff with coverage.

The issue was a novel one in Ohio: whether defective-construction claims are covered by a commercial general liability policy. A federal district court in Ohio found that insurance covered defective construction generally, but that an exclusion applied.

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In my insurance law class, I talk in Chapter 2 about the idea of fortunity. It is mostly a theoretical concept. Insurance is intended to provide protection against unknown events that occur in the future. So obviously, the law and common sense dictate that when you buy car insurance after a car accident, the “loss in progress” doctrine will bar coverage.

In Schwartz Manes Ruby & Slovin, L.P.A. v. Monitor Liability Managers, LLC, the 6th Circuit looked at whether or not the insured reasonably could have foreseen that a claim would be made prior to the signing of an insurance policy.

The case involved legal malpractice coverage. The law firm – an Ohio firm – clearly screwed up in defending a lawsuit. The client fired the firm. The new firm asked why the firm failed to appear at the trial, particularly since its file contained a notice for the trial. The law firm did one smart thing: they put their agent on notice who apparently told no one. Then, a new policy of legal malpractice insurance was issued.

The malpractice insurer disclaimed coverage becasue prior to its policy’s inception, the law firm knew it had a motza ball of a potential lawsuit hanging out there.

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JJ Hip

Plaintiff sues defendant claiming back injuries in accident, including a herniated disc. Jury gives a defense verdict. Plaintiff appeals, claiming the verdict was against the weight of the evidence.

The cases are going to fail almost every time. Juries are going to be given a lot of latitude to ignore the unconverted evidence if the don’t believe the plaintiff, plaintiff’s lawyer, or the testifying doctor(s).

These are the facts of this case against the Three Little Pigs, decided this week by the 10th District Ohio Court of Appeals. No, I’m serious, that was the name of the defendant (driver in scope of employment case). The trial judge in this case found that the man did not provide a causal link between the injuries he claimed were “no reasonable mind could differ” injuries, and the car accident.

The lawyers tried to point to treatment that the plaintiff received for soft tissue injuries two days after the accident. But, medical records are not testimony and the court rejected the claims. This was just not an appeal worth filing.

You can read more about the case here.

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shutterstock_85932820An Ohio man was awarded $1 million after suffering a mild traumatic brain injury in a 2006 car collision with a police cruiser. According to Plaintiff’s lawsuit, the car accident occurred when a Strongville police officer made an illegal left turn while responding to a “non-emergency” call. The plaintiff claims a traumatic brain injury.

Our lawyers handle a lot of TBI cases. Plaintiff’s TBI from the car crash presented as many of these injuries often do: pretty much no big deal. Obviously, in this case and countless other TBI car accident cases, the injury evolves from nothing to something extremely problematic.

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Medical malpractice cases in Ohio are on the rise. A little. The Ohio Department of Insurance released its 2009 data (ah, guys, it is 2011) indicating that after four years of decline, medical malpractice lawsuits are up from 2008 in Ohio.

The data is really interesting and can be summarized as follows: most Ohio medical malpractice cases go nowhere. More than three fourths of cases result in no settlement or verdict. Most cases that get dismissed really go nowhere: they are dismissed and/or abandoned by plaintiffs.

Of cases that did proceed, more than 90% ended in settlement. Ohio malpractice insurers are apparently largely willing to settle good cases. When the cases did go to trial, defendant doctors won more than 1 in 5 of the trials.

Only 24% of the malpractice cases resulted in an indemnity payment; the majority of the payments (almost 22%) were the result of the parties reaching a settlement. A mere 5% of the cases went to trial and ended in a verdict, and less than 1% of the cases (0.84%) resulted in a verdict for the plaintiff.

More interesting Ohio malpractice statistics:

  • 7% of settlements/verdicts were over $1 million
  • The physician specialties that had the most claims filed against them were (in order): internal general surgery, emergency medicine, obstetrics/gynecology, family physicians/general practitioners, radiology, orthopedic surgery, anesthesiology, cardiovascular disease specialists, neurology, and pediatrics
  • Neurologists had the highest average payment: $1,530,218.
  • The average wrongful death case where payment was made was $406,329.
  • The highest paid average indemnity ($1,266,637) was for “permanent grave” injuries such as quadriplegia and brain damage – injuries requiring life-long care.

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Jury Verdict Research published a recent study indicating that the average verdict in personal injury lawsuit in Ohio is 303,955. The median personal injury verdict in Ohio is only $13,000. Approximate three percent of Ohio personal injury verdicts exceed $1,000,000.

Recent  Settlements and Verdicts in Ohio

2013 – Plaintiffs, an Ohio mother and father, file suit after their infant son is born.  As in many of these birth injury claims, the child was deprived of oxygen at birth.   Mom presented to the hospital at 3:20 p.m.  She is in early labor.  Her OB/GYN  left her with a second-year resident.  The  baby looked good.  Her fetal tracings were fine until midnight.  For the next four hours, conservative intrauterine resuscitative measures had been taken in response to the non-reassuring tracings.  At 4:50 a.m., the fetal monitor flatlined and an emergency C-section was performed.  The infant was born at 5:10.  Mom and Dad file suit alleging both doctors were negligent in failing to perform a more timely C-section, leading to complete oxygen deprivation.  The case was bifurcated, and after the court found the hospital and doctor to be negligent.  The parties negotiated a $5,250,000 settlement.

2013 – A 47 year old probation officer in Ohio files a medical malpractice suit against Defendant, University of Toledo Medical Center.  A loss of consortium claim is included on behalf of the victim’s husband.  After a two-year history of pain in the right upper extremity, an EMG revealed evidence of right cubital tunnel syndrome.  Transposition of the ulnar nerve was performed.  During the surgery, the ulnar nerve was transected.  Post-operatively she continued to treat for pain.  She reported hypersensitivity in her hand and difficulty at work.  After treatment and management of complex regional pain syndrome with stellate ganglion blocks, and a regimen of physical therapy, she underwent a second surgical procedure.  As a result she resigned from her job as a probation officer due to her inability to keep up with her work duties.  She filed suit claiming permanent complex regional pain syndrome (CRPS), hypersensitivity, and difficulty sleeping.  The court determined she should have been able to continue working and declined to award lost wages.  They awarded $250,000 to her for past and future pain and suffering, and $854 for out of pocket medical expenses.  The husband was awarded $150,000 for loss of consortium.  The total judgment was $400,853.88, plus a $25 filing fee.

2010 – A 60 year old retiree was awarded $75,000 for pain and suffering as a result of being injected with the wrong patient’s blood.  During a routine nuclear stress test, the Plaintiff was hooked up to an IV for injection of medications.  The Defendant failed to check the Plaintiff’s wrist band, and injected her with a blood mixture from the patient in the adjoining room.  The blood had not been screened for blood borne diseases.  Ultimately there was no evidence of infection, and the Plaintiff did not suffer a rejection of the blood, therefore the Defendants denied liability on the grounds that the Plaintiff did not suffer an injury.  The jury disagreed but obviously did not award a great deal of money.

2010 – A 42 year old homemaker was awarded $195,500 as a result of a common bile duct injury that required an addition surgery to repair.  Plaintiff underwent a laparoscopic cholecystectomy during which the Defendant surgeon mistakenly clipped and removed a portion of her common bile duct. Defendant claimed that a common bile duct injury is a known risk and complication of the procedure.  An Ohio jury sided with the Plaintiff and awarded her $196,500 for pain and suffering, and $70,000 for past medical expenses.  Total verdict was $196,500.