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What happens after you file your lawsuit in federal court?

Complaint

Federal court lawsuit once filed involves various stages. The first thing that happens in a lawsuit is that a document, called the complaint, that contains formal allegation(s) by the plaintiff in the case is filed. The plaintiff is the person who brings the lawsuit and files the complaint. The complaint initiates the lawsuit and contains: (1) a statement of the Court’s jurisdiction over the parties, such as “diversity of citizenship” jurisdiction for federal courts (lawsuit between citizens of different states), and the subject matter (facts); (2) a statement of claims/causes of action against the Defendant(s); and (3)request(s) for relief, such as monetary damages. The typical cost of filing the complaint is between $200 and $400.

Service of Process

After the lawsuit is filed with the court, the plaintiff must have it served on the defendant, who is the party in the complaint (lawsuit) against whom the claim/cause of action is brought. Service of the complaint requires notification to the defendant by personal delivery, mail, or publication. Along with the complaint a summons must also be served on the defendant. A summons is a written notice accompanying a complaint (lawsuit), served on the Defendant, notifying that he or she is a party to a lawsuit or other Court action.

Motion to Dismiss

After receiving the service of the complaint, the Defendant must file either an answer to the complaint or a responsive motion. A responsive motion is simply document asking the court to do something. In this case, it would be a document asking the court to dismiss the complaint.

If the Defendant files a motion to dismiss the complaint, the plaintiff will have a short period of time in which to file a written memorandum of law. Such memoranda are usually captioned as “Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss.” After the opposition memorandum is filed, the Defendant will file a Reply Memorandum. When the reply is filed, the briefing is finished, and additional briefs are generally not filed unless the parties first obtain permission from the Court (what is known as “leave of Court”).

The Court will then proceed to rule on the merits of the motion to dismiss. If the motion is denied, the case proceeds, and the Defendant must file its answer. If the motion is granted, the Court may dismiss some or all of the claims. If all of the claims are dismissed, the plaintiff has the option of considering whether to file an appeal challenging the dismissal.

In some cases, the Court will ask to hear oral argument regarding a motion to dismiss. Usually, however, the Court will rule on a motion to dismiss without hearing oral arguments.

Answer

If the case proceeds, then the defendant must file an answer to the remaining claims found in the complaint. In its answer, the Defendant tells what the Defendant believes has happened. Under the rules, an answer must be filed within a given time. Usually, the deadline for filing an answer is twenty (20) days after the Defendant was served with the complaint.

Case Management Conference

After the defendant has filed the answer to the complaint, a case management conference usually will be held where discovery issues will be discussed and resolved, formal discussion of possible settlement will occur, pretrial motions will be discussed, and a trial date will often be scheduled. The Judge will encourage the parties to seek settlement and is normally willing to meet again with them if it encourages settlement.
If a settlement cannot be worked out at the scheduling conference, a formal trial will be scheduled to take place unless a motion to dismiss or for summary judgment is granted. A motion to dismiss a complaint may be granted for failure to state a claim upon which relief can be granted, failure to effect proper service of process, lack of venue or personal jurisdiction, lack of federal subject matter jurisdiction, or for failure to comply with court rules or orders.

Discovery

The next step is pretrial activities. The most important pretrial activity is probably “discovery.” Discovery allows both the plaintiff and the Defendant to have as much information as allowed under the rules before the Court has decided the case. The most common types of discovery tools are: Depositions, Interrogatories, Requests for Production of Documents, and Admissions are used to gain information from parties. Subpoenas are used to get information from third parties.

Depositions are a method of discovery that allows a party to ask questions of a party opponent (such as the Defendant) or a witness under oath, and the questions and answers are recorded by a court reporter. Court reporters charge for this service and this is usually one of the up front costs of bringing a lawsuit along with the filing fees charged for filing a complaint.

Interrogatories are a discovery tool of written questions used to obtain information about the case. They are served on a party opponent (such as the Defendant) and must be answered under oath.

Requests for production of documents is a discovery tool that enables a party to a lawsuit to inspect documents another party or nonparty has in its possession or control.

Admissions are a discovery (information gathering) tool by which one party to the lawsuit asks another party to admit or deny the truth of certain important facts.

A subpoena is a court order compelling a witness, under the threat of contempt, to appear and testify in Court or at a deposition. A subpoena duces tecum is a type of subpoena issued by a Court to require a witness to produce at a deposition or a trial certain specified documents, papers or items that are about the case and in the witness’ possession or control.

Summary Judgment Motion

After Discovery is over, the court usually gives the parties a time period in which to file dispositive motions i form of a summary judgment motion. Summary judgment motions are almost always filed by defendants in the case. The summary judgment is filed by a party who claims that there is no dispute about the important facts and the moving party is entitled to judgment in his or her favor as a matter of law, thus making it unnecessary to send the case to a jury or bench trial. The judge will grant the summary judgment motion if the Judge considers it unnecessary to go through a trial because there is no dispute about the important facts of the case and the law provides that no relief is warranted. The result of the summary judgment motion is that the case is over. The winner is the person who filed the summary judgment motion and gets it granted.

Trial

If the case gets by summary judgment, it will go to trial. There are two types of formal trials. One is a jury trial and the other is a bench trial or a trial before the Judge alone. In a jury trial, a group of people known as the jury (no fewer than six and no more than 12 people) is selected and sworn to decide the merits of the lawsuit under the Judge’s supervision and direction. If a jury trial has not been requested or the case cannot be tried by jury, a bench trial will be ordered. The Judge conducts a bench trial without a jury. The purpose of a trial is to let the jury or the Judge decide whether the evidence favors the plaintiff’s position or favors the Defendant’s. If it favors the plaintiff, they win; if it favors the Defendant, the Defendant wins. After the jury or the Judge makes such a decision, a final judgment will be entered at the Court in the Clerk’s Office. If the parties agree, the trial can be heard before a Magistrate Judge. This could be beneficial in expediting the case to trial since Magistrate Judges cannot preside over criminal trials and, therefore, their trial schedules can provide more of a guaranteed date for the trial to begin.

Throughout the trial and even after the trial, the parties may file various motions to ask from the Judge certain orders favorable to them. For example, a party can make a motion for judgment as a matter of law, after they have presented all their evidence to the jury or the Judge, arguing that they believe that there is only one possible verdict; namely, a verdict in their favor. If after a jury returns a verdict against a party, and they believe the verdict is legally wrong, they can make a motion for judgment as a matter of law, asking the Judge to enter a judgment different from the jury’s verdict. Even if the Judge has entered a final judgment against a party, that party may still make a motion for a new trial within ten (10) days after the entry of an order if they feel there was error of law or fact, or new evidence is discovered.

If the case is lost at any point, the party losing the case can ask an appellate court to review the trial court’s decision. This process is called an appeal. A different set of rules controls the procedures for appeal.

Ohio signs Uber insurance legislation

Ohio signs Uber insurance legislation.

Ohio signs Uber insurance legislation making it safer to take rides from Transportation Network Companies. An issue that many of us Toledo Ohio personal injury attorneys have had with the ride sharing apps is that our clients have been at risk of being under-insured if they were injured while using one of these services. Up until now there has been a major problem of not having enough insurance to cover their injuries if they were unfortunately involved in an accident. Imagine if your driver just carried the bare minimum liability coverage in Ohio. That’s $25,000.00. If your driver caused an accident where you were left paralyzed, the maximum amount that you could recover from your driver was the $25,000.00. Of course, you could get a personal judgment against the driver. However, unless the driver was independently wealthy you would never be able to collect enough money from him to pay for your care and maintenance. In such a situation, you would most likely be taken care of by the government – i.e., tax payers.

A new law compelling Transportation Network Companies, such as Uber, to maintain $1 million liability insurance coverage and conduct background checks on their drivers was signed by the Governor of Ohio this week. The new law takes effect in ninety days or on about March 22, 2016. So, while the requirements to have $1 million liability insurance coverage is likely to add a cost to the fare, it’s better that you pay a little extra for the ride then the tax payers pay for your care for the rest of your life. It also brings the Transportation Network Companies into line with other transportation companies, such as buses and taxi cab drivers which are currently regulated by the Ohio Department of Insurance. Regulation is necessary to ensure that citizens are protected from catastrophic events.

Ohio Personal Injury and Medical Malpractice Case Law Update

Antoon v. Cleveland Clinic, 2015-Ohio-421

On 9-16-15 the Supreme Court took in this case with dissents by Pfeiffer and O'Neil. It was a Cleveland Court of Appeals decision which 3 to 0 have reversed a Trial Court dismissal in a med-mal case based on statute of limitations and had a discussion in regard to the statute of repose and it also involved a dismissal in Federal Court.

State of Ohio v. Ebraheim, No. L-14-1157

Case was an appeal from a finding of guilty by a judge in Toledo Municipal Court against Dr. Ebraheim over the accident at Dorr and Richards Road involving himself and a motorcycle. It was interesting since there was a lot of discussion in regard to proximate cause and also expert witnesses by both sides in regard to vehicle speeds, etc.

Link v. First Energy, 2014-Ohio-5432

With three dissents was taken in by the Court. It involved a case against the defendant over injuries sustained when hitting a utility pole and there was apparently a large jury verdict for the Plaintiff and questions about punitive damages. The Court of Appeals upheld the jury verdict but it was taken in by the Supreme Court over 3 dissents.

Argabrite, 2015-Ohio-125

With three dissents taken in by the Court. It involved a police pursuit and the Plaintiff was injured by the driver being pursued. The Trial Court granted MSJ for the officers and it was affirmed with one dissent in the Court of Appeals.

Slip and Fall at Winery Results in Defense Verdict

Dunn v. Heineman’s Winery, 2015-Ohio-4054

Slip and Fall

In this case, the plaintiff was visiting a gift shop and then proceeded to go outside to an outdoor wine garden. The lawn area had recently been seeded and was covered with straw. It had rained earlier that day and the ground was wet. Three pieces of plywood had been placed on the ground so that customers could walk from the gift shop to the wine garden without getting mud on their shoes. The plaintiff slipped on the wet plywood and was injured.

The Open and Obvious Defense

This case, which was a slip and fall at a winery at Put N Bay, was found in favor of the defendant based on the defense of open and obvious danger. This defense is the most common defense used by owners of property involved in slip and fall claims. The trial court found the piece of plywood an open and obvious danger as a matter of law, leaving the winery with no duty to protect the plaintiff.  “The open-and-obvious doctrine eliminates a premises occupier’s duty to warn a business invitee of static dangers on the premises if the dangers are known to the invitee or are so obvious and apparent to the invitee that he or she may reasonable be expected to discover them and protect himself or herself against them.” Simmons v. Am. Pacific Ent., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, ¶ 21 (10th Dist.), citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). The case was affirmed 3 to 0 in the Court of Appeals of Ohio, Sixth Appellate District, Ottawa County.

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

On July 8, 2015, the Ohio Supreme Court accepted the case of Carter v. Reese, 2014-Ohio-5395 for review, which means that the Ohio Supreme Court will decide this appeal from the decision of the Twelfth District Court of Appeals.

Facts of the Case

It is a case involving a man who lost his leg when he was pinned against a loading dock. The man was stuck between the truck and the loading dock, but was uninjured. He was trying to get unstuck when he heard someone nearby. He called out to the man and the man asked what he could do to help him. The pinned man asked him to move the truck forward about a foot, but to make sure that he did not reverse the truck. The man who was attempting to render assistance did not know how to drive the type of truck that the man was pinned behind, but he decided to render assistance anyway and let the truck roll backwards onto the pinned man breaking his leg in three separate places. By the time someone came to render assistance who knew how to drive the truck, the injured man had lost so much blood that he had to be airlifted to the hospital and ended up having to have his leg amputated.

Decisions of the Lower Courts

The Trial Court and the Court of Appeals both affirmed Motions for Summary Judgment based on the "Good Samaritan" law in regard to rendering emergency care, holding that the Good Samaritan law in Ohio protects anyone who renders emergency care from liability for their conduct unless their conduct is willful and wanton. The issue that the Ohio Supreme Court will decide is whether Ohio’s Good Samaritan civil immunity statute only applies when emergency medical care is rendered or when anyone attempts to render emergency care.

What the Good Samaritan Statute Says

The Good Samaritan statute in R.C. 23025.23 states “(no) person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful and wanton misconduct.”

What is the Equitable Result

What do you think? Should the Ohio Good Samaritan law protect non-medically trained individuals from liability? Even if the Ohio Supreme Court determines that the law as written applies to any person, health care professional or otherwise, who administers ‘emergency care,’ medical or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g. their acts do constitute willful or wanton conduct, this is an inequitable result for this injured trucker and the State of Ohio’s legislature should change the law to reflect this inequitable result. It was clearly negligent for the individual attempting to render assistance to try to drive the truck when he did not know how to operate it and he should be held accountable for his negligence.

West Toledo Motorcycle Accident Attorney

Motorcyclist Killed in West Toledo Crash

A motorcyclist was killed in a crash involving a motorcycle and another vehicle in West Toledo early today. According to the Toledo Blade, a car turned right in front of the motorcycle. Unfortunately, as is far too often the case, the driver of the automobile was not injured – but the rider of the motorcycle lost his life.

What to do if this happens to you

If this happens to you, do not hesitate to call attorney Charles S. Herman. I am a West Toledo motorcycle accident attorney and I represent individuals in all types of accidents in the Toledo, Ohio and surrounding areas. If you have been injured or your loved one or family members has lost their life in a motorcycle collision, do not hesitate to pursue the matter through a lawyer because there may be some difficult legal issues including comparative negligence and uninsured motorist coverage involved in the case. There have been studies done that show that the earlier you get an attorney involved in your case, the better settlement that is obtained on your behalf. West Toledo motorcycle accident attorney Charles S. Herman represents injured motorcyclists on a contingency fee basis. This means that there is no fee unless you win your case and attorney Herman will help you seek reimbursement for all related expenses, including wrongful death, loss of quality of life, pain and suffering, and loss of future earnings. Contact me now for a free consultation or go to my website at www.toledounionattorney.com. 

Ohio County Immunity

Rosenbrook v. Lucas Cty. Bd. of Commrs., Court of Appeals of Ohio, Sixth District, Lucas County

This case arose when the plaintiff slip and fell on a floor mat at the Lucas County Ohio courthouse. She and her husband brought suit against the County and the Court found that summary judgment was proper for the County because the negligence claims stemming from the slip and fall accident that occurred failed to establish an exception to the county’s immunity under R.C. 2744.02(B)(4), and further failed to identify the cause of the fall as required under the general laws of negligence. The county argued that the plaintiff did not allege any facts that would strip appellant of its statutorily imposed governmental immunity.

As stated by the Ohio Supreme Court, a “three-tiered analysis” is used to determine whether a political subdivision is immune from liability. Under the first tier, we examine whether the general grant of immunity provided by R.C. 2744.02(A) applies. If it does, the second tier requires us to determine whether immunity has been abrogated by the exceptions set forth in R.C. 2744.02(B). If an exception applies, the third tier involves a determination of whether the political subdivision is able to successfully assert one of the defenses listed in R.C. 2744.03, thereby reinstating its immunity.

R.C. 2744.02(B)(4) abrogates the general immunity afforded political subdivisions engaged in a governmental activity only if an injury is: 1) caused by employee negligence, 2) on the grounds or in buildings used in connection [with] that governmental activity, and 3) due to physical defects on or within those grounds or buildings.

In order to establish employee negligence, appellants must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. As a threshold matter, the Court had to determine the appropriate duty of care owed to the plaintiff. To determine the duty of care owed in premises liability actions, the Court examined the relationship between the owner or occupier of the premises and the injured party and found that the plaintiff was a licensee to whom the county owed no duty except to refrain from willfully or wantonly causing injury. The Court further found that plaintiff failed to show that there was no evidence of willful or wanton misconduct surrounding the County’s handling of the floor mats.

This case is in line with others that have been decided involving similar facts. In slip and fall cases, it is very difficult – if not impossible, to overcome the immunity defense of political subdivisions. If you think that you may have an Ohio premises liability action against a State of Ohio political subdivision, it is important to speak with an Ohio premises liability attorney who can help you decide if you have a case that is worth pursuing.

Ohio’s Saving Statute

Mays v. Toledo Hospital, 2015 Ohio 1865 – Ohio: Court of Appeals, 6th Appellate Dist. 2015

This was a case for a wrongful death action and the Court held that Ohio’s saving statute does not apply to allow a person to bring a claim for wrongful death for a third time.

The first time that the case was brought by the pro se plaintiff, the Court dismissed the complaint finding that the claims were required to be brought by an attorney and that the complaint lacked an affidavit of merit pursuant to Civ.R. 10(D)(2). The Court found that Ohio’s saving statute may be used only once to refile a case and that it cannot be used to keep actions alive indefinitely. The Court went onto state that to allow a plaintiff to use R.C. 2305.19 more than once would frustrate the purpose of the civil rules which are intended to prevent indefinite filings.

A review of the procedural posture of this case is a good reminder of why it is so important for people with potential claims to speak with an experienced attorney and to seek help with their case. There are a myriad of complicated procedural rules that must be followed when bringing a wrongful death action based on medical malpractice. In this age of Google, many people read about how something is done on the internet and think that they can go ahead and do it themselves. There is nothing wrong with a party going pro se in limited circumstances, but in actions such as medical malpractice and wrongful death it is imperative to hire experienced counsel.

Ohio Premises Liability

Combs v. Ohio Dept. of Natural Resources, 2014-Ohio-4025

On 4-8-15 the Supreme Court of Ohio took in the case of Combs v. Ohio Dept. of Natural Resources, 2014-Ohio-4025, which dealt with immunity in regard to a recreational user.

The case dealt with Ohio Revised Code 1533.181, commonly known as the recreational user statute"

"(A) No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe for entry or use;

(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.

(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals."

The Trial Court had found immunity when a person who was on some State property was going to do some fishing and was hit by a stone that was thrown by a lawn-mower that was being operated by a State employee. The Supreme Court of Ohio found that the immunity statute did not apply unless there was actually a defect in the premises. The Court found that, although Combs was a recreational
user, R.C. 1533.181(A)(1) does not immunize ODNR from liability for his injuries.

Wrongful Death Results from Negligent Toledo, Ohio Driver in Motor Vehicle Accident

Wrongful Death Results from Negligent Toledo, Ohio Driver in Motor Vehicle Accident

Wrongful death from driver's attempt to beat the light resulted in a fatal crash and a verdict for the Plaintiff in Toledo, Ohio. The decedent was driving his car southbound on Talmadge Road near the intersection of the eastbound entrance ramp to I-475 when he attempted to take a left hand turn onto Springbrook Drive when he was hit by a speeding northbound vehicle whose driver attempted to beat the light and ended up running the red light at the intersection. The jury found that each of the parties were partially at fault for the car accident.

The case involved the Toledo, Ohio attorney introducing evidence from the black box data of the northbound vehicle and light sequencing data in an effort to show that the northbound vehicle was speeding. The decedent suffered blunt force head trauma and died five days post-accident after being removed from life support. Prior to the trial, the demand in the wrongful death case was $500,000 by the plaintiff and the offer from the insurance company was $200,000.

After trial, the jury attributed 60 percent liability to the defendant (driver of the northbound vehicle) and 40 percent liability to the decedent (plaintiff). The jury returned a $750,000 wrongful death verdict, which was reduced to $450,000 due to the comparative negligence finding. That is, in Ohio, under Ohio Revised Code 2315.33, the contributory fault of a person does not bar the person as plaintiff from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the plaintiff does not seek recovery in this action. In this case, the court diminished the compensatory damages recoverable by the plaintiff by an amount that was proportionately equal to the percentage of tortious conduct of the plaintiff as determined pursuant to the law.

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

Email: charles@charleshermanlaw.com

Web: http://www.toledounionattorney.com

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.

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.

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.

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.

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.

http://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-about-medical-malpractice/

“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.

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

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.

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.