Articles Posted in Ohio

Former Cleveland Browns wide receiver Joe Jurevicius has filed a medical malpractice lawsuit against the Cleveland Browns and the Cleveland Clinic. Joe Jurvevicius’ claim is that he contracted staph following arthroscopic surgery at the Cleveland Clinic in January 2008. His Complaint accuses his doctors, including the team doctors, of medical malpractice of negligence over a staph infection in Jurveicius’ right knee.

I’ve been down this road with an NFL player in a case I handled against the New England Patriots. He is the motion I filed in that case to defeat the team’s claim that there is no jurisdiction. But that Browns’ lawyer will make the argument that unless Jurevicius’ lawyer put the Browns on notice very early in the game (90 days, I believe), he has has waived his right to bring a claim against the team based on the NFL Collective Bargaining Agreement. It seems silly to break off the malpractice case into two separate cases: one against the team and one against the doctors. But at least one court that I have seen, Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990), seems to think that this is the required approach under the NFL CBA. (My case gave the court an easy out: the Patriots waited 2 years to file their motion which the court relied upon to find that the Patriots and their team doctor waived their right to assert that arbitration was still a remedy.)

You cannot understate the harm caused by staph infections: CDC estimates infections – many of which are staph infections – kill 90,000 people annually. Infections result in an estimated 205,000 additional hospital days for infected patients and a whooping $2 billion in medical costs.

The Toledo Blade has an article today about defensive medicine, the doctrine that in fearing medical malpractice claims, as opposed to acting in the patient’s interests, doctors prescribe tests, medication and sends patients for referrals or follow-ups that are not warranted by the circumstances.

First, some defensive medicine is good. If a doctor thinks he might be on the hook for not ordering a test down the road, I’d like him to perform that test on me 9 times out of 10. In the 10% of the time when the test is invasive or has significant risks, are doctors really going to order such a test to protect themselves from the unlikely event that that there will be a malpractice claim that is covered under their medical malpractice insurance policy? I doubt it. And I don’t think I’m overestimating Ohio doctors.

The article quotes a Toledo medical malpractice lawyer who states the obvious: doctors can avoid malpractice concerns simply by following the appropriate standard of care. “And that’s a really good rule of thumb to go by. If you would want your own family member to go to the specialist to make sure [of a diagnosis], then that’s what you should do with everybody else. But most of the time, it may not be good to go to a specialist, and then they should use their own judgment. Time and again, the juries favor them when they do that, ‘I think they should be treating everybody as if it is their own family member.’” said Steve Collier.

After three-and-a-half days of deliberation, a Hamilton County, Ohio, jury awarded $22.6 million to a Blue Ash woman and her child. The suit had been brought due to the child’s permanent brain injuries resulting from having been stuck for over 13 hours in the mother’s birth canal during delivery in 1997. Tragically, the child, now eleven years old, has spastic quadriplegia. Almost $16 million of the award was for future medical expenses.

There is a cap in medical malpractice cases in Ohio. The cap in medical malpractice cases in Ohio is the greater of either $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per malpractice occurrence. If the Ohio malpractice cap was applied to this case, the cap would increase to $500,000 per plaintiff and $1 million per occurrence when the plaintiff suffers 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.

How unjust would it be to limit this mother and child’s recover in this case? Fortunately, the Ohio malpractice cap does not apply in this case because the cap applies only to negligence that occurred after April, 2003. But surely another child is coming down the pike with similar injuries, and that child will never receive the compensation that a jury deems appropriate.

People who live or have loved ones who live at Westside Health Care and Nursing Home, a long term care nursing home that recently received a surprise inspection, will have to wait a little longer before receiving the Cincinnati City Council’s health committee has been canceled report on how Westside Health Care and Nursing Home is caring for its patients. A report had been expected today, according to the Cincinnati Enquirer.

Cincinnati police described conditions at the Westside as “deplorable,” and reports showed residents living with fleas, flies and filth. Residents told police that laundry had not been done in three months. In the affidavit filed to secure the search warrant, Cinncinnati Police Office Aaron Layton said wrote that the conditions presented “a safety, health and fire hazard to the occupants of the premises and surrounding properties.” Upon inspection, according to the Cinncinnati Enquirer, a fire door tied shut, accumulation of vomit was in an entryway, smoking was permitted near oxygen tanks, the sprinkler system did not work, and there were loads of structural defects.

When I was a kid, I was bouncing around in the back of my parents car without a car seat in sight. Today, that is child abuse but it was normal back then. If you are wondering what was seem awful 10 years from now, I think it will be the way we treat our elderly. I don’t think the Westside Health Care and Nursing Homes of the world will exist in 10 years.

lipitor

Cap on Damages Lives in Ohio

The Ohio Supreme Court has concluded that Ohio’s statutory caps on damage awards in personal injury lawsuits are constitutional in a 5-2 decision today.

Like most states with caps, the cap applies to pain and suffering damages and other intangible injuries. The Ohio cap is particularly restrictive: $350,000 unless the injured person lost a limb or bodily organ. Ohio also has a punitive damages rule that restricts punitive damages to twice the amount of damages awarded as the judge or jury awards in compensation for the plaintiff’s injuries, minus any reductions as a result of the cap on pain and suffering damage. (Actually, the formula is a little more complicated than that but this is the gist of it.)