According to a recent article, a New York surgeon operated on the wrong leg--TWICE. A couple of things are obvious. First, this guy has a real problem with attention to detail. He may even be a good surgeon, but this is a sign that he is too hurried for whatever reason. Some may argue that doing this once, when so easily preventable, is inexcusable, much less when it happens twice.

Second, most reasonable people would expect that the hospital, or the state medical board which licenses and disciplines doctors, would really drop the hammer on this guy. Reasonable options might include: (a) suspending his license for a period of time; (b) Revoking it; or(c) terminating his privileges at the hospitals where he operates.

Wrong. How about option (d):...ready for this....he was CENSORED AND PUT ON PROBATION! I'm sure his scalpel is just quivering over the cruel punishment of a "reprimand."

Indignation aside, this case provides two valuable teaching points on Ohio malpractice cases and laws. Juries who hear these cases arrive at the courthouse with a lot of misperceptions about malpractice litigation. Juror Misconception No. 1:"We were concerned that if we returned a verdict against the doctor, he would lose his license." Not true. Ohio's State Medical Board is similar to New York's in that REPEATED MALPRACTICE is usually not enough in most instances to cause a doctor to lose his license. Conduct like stealing or selling narcotics, billing fraud, and sexually abusing patients is more likely to get a ticket yanked than a pattern of malpractice. Sad, but true.

Juror Misconception No. 2: "We were reluctant to find the doctor negligent because there was no previous history of similar malpractice." This is another red herring. If Dr. Wrong Leg had operated in Ohio on the wrong leg once before, and was sued for malpractice for doing it a second time, chances are that his first negligent wrong leg surgery would be inadmissible at trial anyway! In a malpractice trial, we do not have to show that a doctor had a history of malpractice. A perfectly competent doctor can make a preventable mistake on a bad day and injure a patient. Our Rules Of Evidence would generally exclude Dr Wrong Leg's prior botched surgery unless he got on the stand and denied ever having operated on the wrong leg before. So, in some instances, there may be a history of similar malpractice that we're not even allowed to talk about in trial.

Physicians' groups, the AMA, and insurance companies are famous for spending millions arguing that doctors are leaving the practice due to lawsuits and juries are going wild with "jackpot justice" jury verdicts. We see here the reality of the situation. Operating on the wrong leg twice gets the doctor a slap on the wrist, and if he's sued for malpractice, chances are the jury will never be told of his first wrong leg mishap. Now you hopefully can see what I mean when I said that Ohio malpractice cases and litigation are fraught with misconceptions.

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True story. My clients were clobbered by a commercial truck in Pennsylvania. The husband had $70,000 in medical bills, which were paid by his health insurance company. For months the husband and wife had been dealing on their own with the trucking company’s insurance adjuster. When the insurance company finally made them an offer over a year after the crash, the adjuster told them: “From our offer of settlment, you have to repay your health insurance company for the $70,000 it paid for your medical bills” (this is known as "subrogation"). Not happy with the offer, they called me, and brought in their health insurance manual.

Sure enough, the health insurance manual contained a standard “subrogation” clause, which generally provides that the injured person must reimburse the health insurance company out of his or her settlement for any accident related bills it paid. However, upon reading the manual further, I discovered that the health insurance company made a colossal mistake in its subrogation clause: its claim of reimbursement was limited to dental bills paid due to a collision. The manual had inadvertently omitted “medical bills” from its subrogation clause!!! Translation: the health insurance company had no right to be reimbursed for the $70,000 it paid in medical bills.

The upshot? The adjuster actually gave bad legal advice to the clients that they had to reimburse their health insurance company. When I took the case, I wrote the health insurance company a letter and informed them that, by virtue of their own language, my clients did not owe them a penny in reimbursement, since my client had $70,000 in medical bills but no dental bills! After a few weeks, I got a return letter from the health insurer acknowledging that we were right, and they dropped their reimbursement claim. Obviously, they goofed in writing the manual and were therefore stuck with their own limiting language.

As it turns out, both the trucking company’s insurance company and the health insurance company were wrong! Both assumed, wrongly, that the $70,000 reimbursement claim was valid. The adjuster who was dealing with the clients did nothing sinister; he simply had no interest in checking the clients’ benefits manual and was content to assume that because the health insurance company sent him a letter claiming reimbursement, their claim was therefore valid. And the clients' own health insurance company was either totally ignorant of its own provisions in its manual, or was deceptively trying to pull one over on the clients. When I informed the adjuster during negotiations that the health insurance company had abandoned its claim for the $70,000, he was shocked.

Simply reviewing the health benefits manual and sending a few letters saved my clients well over $70,000 when we settled the claim. It is yet another example of application of "Rule No.1," and proves that insurance companies have no vested interest in taking the time to look out for the injured person’s best interests.

The story above is an excerpt from my FREE book "Your Ohio Accident...And How To Level Your Playing Field." To find out what "Rule No. 1" is, and other information about what you can expect if you're involved in a collision, simply click on the cover of the book on the blog home page.

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A few months ago I participated in a TV interview on tort reform. With a lot of help from people much more technologically adept than me, including my way smart wife, we were able to make some reproducible clips of the show. One is below:

Click To Play

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A little Friday irreverance is in order.

Insurance.com recently posted "The Top Ten Most Dangerous Foods To Eat While Driving." The list of "dangerous foods" struck me as both bizarre and arbitrary. Coming in at No 2 was "hot soup." Seriously--who eats hot soup while driving ("Hold on dear, let me chug this vegetable soup before I make this lane change")? No 4 was "chili dogs." Not hot dogs with mustard, ketchup, onions, relish, or any other combination of 36 condiments you can pile on a dog.

No. 6 was "barbequed foods." Some may ask the same question I raised about hot soup--who in their right mind would eat ribs or wings while driving? I can honestly report that, a few years ago while on a family vacation, we actually witnessed "wings dude" eating wings and licking his fingers and driving down I-77. Hilarious, but not a pretty sight.

Failing to make the top ten list, but with a strong showing nonetheless, were:
Spaghetti and meatballs and lasagna
Boiling hot baked potatoes
3 layer cakes
Moo Goo Gai Pan (worse with chopsticks)
Banana splits
Any standard 4 or more toppings pizza
Beef stew
Anything made--er--pulvarized in a crock pot
Open faced sandwiches with gravy
Grape Nuts cereal (ever try to get through a bowl--hope you're going on at least a 2 hour drive).

(OK, I made up the second list). Given all the cellphone usage and texting while driving, I'm sure it won't be long until I see someone driving while texting and eating spaghetti and meatballs and washing it down with piping hot coffee.

Now you know why we personal injury attorneys will never be out of work, despite all The Chamber Of Commerces' ad campaigns targeted to put us all out of business. You just can't account for or legislate away a lack of common sense or human idiocy...

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If you've been in an auto accident, this is what you're going to hear from the at fault party's insurance adjuster over the phone: "Before we get started on your claim or pay any bills, our company policy requires you to sign and return our standard medical authorization."

By signing the authorization, you're giving the insurance company a blank ticket to fish around in your entire medical history, even if it's unrelated to the torn rotator cuff you received due to the crash, to use a simple example. Anything is now fair game for them to get their hands on--counseling, psychological, OB-GYN records-you name it.

I've had clients tell me: "Well, I have nothing to hide." And you shouldn't. Any prior history of any injuries or conditions affecting your collision injuries SHOULD be divulged to your attorney, and the insurance company should know about it as well. We ALL need to know if you have any previous injuries or conditions to any part of your body that was injured in the crash.

But under Ohio law, we have a doctor-patient privilege, even when you are involved in an accident. That privilege still protects medical information that is unrelated to your injury claim. And particularly with elderly clients, insurance companies love to obtain Uncle Joe's medical records 20 years before the drunk driver slammed him and tore his rotator cuff, and then argue "gee, we see that his kidneys were going bad and he had a knee replacement and was on high blood pressure medication, so that rotator cuff tear wasn't that big of a deal."

That's the problem with allowing insurance companies to canvass your unrelated medical records--it allows them to take unrelated, privileged information and paint you as "damaged goods" for the purpose of paying less on your claim.

A recent Ohio case (Wooten v. Westfield Insurance Co, 2009-Ohio-494) ruled that an insurance company had no right to demand that the injured person sign a blank authorization/"blank ticket" until it could be determined by a judge, in private (known as an in camera inspection) as to whether the records sought had any bearing on the person's accident injuries. The attorney in that case did an excellent job of lawyering to protect his client's privacy, and had to go all the way to the Court Of Appeals to do it.

This case sends insurance companies a message: you have no right to demand the right to fish around in a person's past medical history and grab anything you want.

The proper way to handle this is for the attorney to freely divulge what past medical information is related to the client's injury claim, and protect from disclosure what is unrelated. But you won't be afforded that luxury if you talk to the at fault insurance company adjuster over the phone shortly after the crash. Instead, you'll hear the words "company policy" and "mandatory" about 13 times. ALthough it's not the adjuster's fault--after all, he or she is just following company policies, it doesn't mean you have to accept it.

NOTE: This rule MAY be different if your own insurance company is asking you to sign a blank authorization. There's a little fine print clause in your insurance contract known as a "cooperation clause" that may require you to sign your own insurance company's authorization. That's why it's important to ask an attorney about your rights before you sign any papers after an accident.

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Disgraced New York attorney Marc Drier, who defrauded numerous clients out of millions in a Madoff type Ponzi scheme, was sentenced to 20 years in prison recently. According to this New York Times article, Drier funded his Ponzi scheme by stealing settlement funds from a client, and it snowballed from there. His reason for hatching this scheme? He was only making about $400,000 per year and felt inadequate and a sense of underachievement compared to some of his high society New York colleagues. So he went out and bought lots of yachts, cars, and art with his ill gotten gains.

Seriously? You can't get by on making more than ten times what the average American makes, so you start stealing from and defrauding countless clients to support a lavish lifestyle? And for this you only get 20 years in the slammer? The government argued for 145 years in prison--what I call a "good start" for a sentence.

Between frauds like this guy, sleazy commercials, and offensive solicitation letters that arrive at crash victims' mailboxes before they even get the hospital bill, it's no wonder that we have little to no credibility with the public. This sea of sleaze is one of the main reasons why I choose to blog. Our firm does not advertise, and I absolutely hate lawyer solicitation letters with every fiber of my being. They are the WORST thing ever that's happened to us as a profession, in my opinion.

At the end of the day, all I can offer is to share some of my information and experiences from over 20 years of representing accident victims by publishing this blog and some of the informational books I've written. If it helps answer someone's legal questions, fine. And if my blog helps an accident victim in the decision to hire me or another competent lawyer, that's OK too. As far as I'm concerned, taking the time to educate people in need in a tiny corner of the Internet world is infinitely superior to cheesy and tasteless commercials and offensive solicitation letters. Marc Drier is living proof that some of these "high powered" attorneys are not all they're cracked up to be.

I'll bet he never blogged. Sounds like he had too many toys to play with anyway...

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This is a fantastic article by Virginia attorney Ben Glass and required reading on how you should conduct yourself if you are making an injury claim. In short, be honest! Be honest with your attorney, your health care providers, your employer, and anyone else you come in contact with during the life of your claim. If you exaggerate your claim and try to "pad" your losses, it will eventually unravel.

The advice in this article is what I've been preaching to my clients for over twenty years now, as I've written in my book, "Your Ohio Accident...And How To Level Your Playing Field"--only Ben has really nailed it in the above article.

Remember, insurance companies would love to "catch" you in a lie or an exaggeration. It's what they're looking for, and it's what they're good at, and they ought to be--they spend millions each year trying to do just that. By being honest, you take away a major bullet in their arsenal.

Is it really any suprise that honesty is always the best policy? Any second grader is wise enough to know that...

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Yesterday, Stark County and The State of Ohio lost one of the finest attorneys ever to step foot in a courtroom. Eugene P. Okey was one of the most feared and respected personal injury attorneys in Ohio in the 70's, 80's and even early 90's. His courtroom victories were legendary--numerous multimillion dollar jury verdicts, the landmark Jeep rollover case, which set legal precedent in Ohio and in the U.S. and is still good law today, and numerous medical malpractice jury verdicts. He earned a national reputation for his representation of injury victims and his trial skills.

But more than his brilliance as a lawyer, he was an even finer person. I had the privilege of working with and for him for almost 15 years. It was very easy to see why he was so successful and so highly thought of. First, he came from modest means and had to hone all of his skills the hard way--by trying scores of jury trials, learning what worked and what didn't, and relying on his own instincts. This process turned him into a great trial lawyer--one who feared nothing, made him able to think on his feet, and adapt to the changing winds and momentum shifts of any trial. Later, with the help of his two sons and daughter, all excellent lawyers in their own right, he built a fantastic law firm.

Secondly, he had an incredible gift for reading people and connecting with them. I call this "street smarts," and it's a gift that most "elite" law grads or attorneys simply can't develop or hone. He didn't read law books; he read people. I think he was good at reading witnesses and juries because he knew how to treat people, and he treated everybody the same--with dignity, respect, and courtesy, both inside and outside the courtroom. From the waitress at lunch to the witness or court reporter at trial, he was genuinely nice and friendly to everybody, and he had an incredible sense of humor. He was a people person, a sometimes playful practical joker, and he never took himself too seriously, despite his success. Although he had a reputation for handling "big cases," he continued to work on smaller cases too, where clients just needed their bills and lost wages paid. Didn't matter to him--he was simply helping people.

I had the privilege of sitting in on a few of his trials. It was impossible for juries or observers not to like him. Oh, there were a few occasions where I saw him get in someone's face during cross examination in the heat of a trial, but he NEVER did that until that witness crossed the bounds of decency, decorum, or was outright taking liberty with the oath to tell the truth. Another sign of a great trial lawyer--learning the art of the effective counterpunch.

His life is testimony to the fact that honest, decent, humble, and hard working people will succeed. One of my favorite quotes on life in general is from Ralph Waldo Emerson, who once remarked: "It's hard to be simple enough to be good."
That describes Mr. Okey perfectly. He will be greatly missed. May he rest in peace.

And "now he knows."

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