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Good article from Plain Dealer this past weekend discussing how many companies are forcing clauses into consumer contracts that bar consumers from taking their legitimate claims to court.  Instead, these issues are forced into binding arbitration forums where the consumer has no chance.  The right to trial by jury is the MOST UNDER APPRECIATED right bestowed by our Constitution.  Most people don't appreciate how important this is to an orderly society and Corporate America is systematically eroding this right day by day.

http://www.cleveland.com/consumeraffairs/index.ssf/2012/10/companies_keeping_consumers_ou.

 

The US Supreme Court is considering a copyright case which may have a far reaching effect on a consumer's right to resell their own property. Today, many consumers resell their property (i.e., cell phones, video games, game systems, cars, text books, etc.) on various internet sites like Ebay & Craig's List. This is especially true of technology gadgets which change frequently and have consumers looking to upgrade their goods by selling their existing gadget and upgrading to the newest model. However, if merchants get their way in the US Supreme Court, that all may change. The case is Kirtsaeng v. John Wiley & Sons.   Presently, a consumer can resell any good he/she purchases but merchants in the Kirtsaeng case are lobbying for an exception to this rule for goods manufactured overseas.   Of course this would apply to many, if not most, consumer products from electronic devices to automobiles. You can read more in the Washington Times article linked below.

http://www.washingtontimes.com/news/2012/oct/26/supreme-court-determine-legality-reselling-iphones/#.UI1yvroQTLQ.email

Personal injury is the frequent and unfortunate result of many accidents. Immediate medical treatment of your injuries is imperative. Yet, the ensuring feud between your insurer and the liable party’s insurer does not really aid your recovery – and it’s certainly not getting your medical bills paid. The skilled litigators at Nager, Romaine & Schneiberg Co., LPA make insurance companies take notice of Ohio’s Coordination of Benefits (COB) law, cutting through the squabbling, and getting you peace of mind that coordinated insurance coverage brings.

Ohio COB law

One of the most disturbing issues when dealing with insurance companies in the aftermath of an injury is the bickering between insurance companies over who is the primary insurer. Despite the parties having paid premiums, the insurers frequently withhold funds for medical care, leaving you open to bill collectors. Our Ohio personal injury attorneys deal directly with medical service providers and insurance companies on your behalf to get you the medical care you need. We additionally make sure the medical bills have been discharged before your lawsuit is concluded.

Ohio law defines COB as follows:

“The order of benefit determination rules govern the order in which each Plan will pay a claim for benefits. The Plan that pays first is called the Primary plan. The Primary plan must pay benefits in accordance with its policy terms without regard to the possibility that another Plan may cover some expenses. The Plan that pays after the Primary plan is the Secondary plan. The Secondary plan may reduce the benefits it pays so that payments from all Plans does not exceed 100% of the total Allowable expense.” Ohio Rev. Code §3901-8-01

In plain language: your primary insurer pays as much as possible according to the terms of the insurance policy. Then, if there are more costs that need to be covered, the secondary insurance company pays the rest, as long as the policy terms permit such a payout.

Depending upon the terms of your policies, you may be required to reimburse your insurers for medical expenses once you recover compensation as part of your Ohio personal injury lawsuit.

In 2004, Ohio enacted a controversial Apology Statute with a stated purpose of improving the physician/patient relationship when medical errors take place.  The statute permits a health care professional to apologize to a patient when a medical error occurs in the care of a patient or a procedure leads to an undesirable result.  The apology (according to the statute) cannot later be used against the health care professional in court if a medical mistake results in a medical malpractice case.

Ohio Revised Code Section 2317.43(A) provides that "statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence [made by a physician] * * * are inadmissible as evidence of an admission of liability or as evidence of an admission against interest."

All of this sounds benign enough until one sees how this might play out in the context of an undesired medical result and/or a medical malpractice case.

Studies have shown that patients are less likely to seek a legal resolution to a medical error when they receive an apology from their doctor.  Doctors have complained that the potential for litigation chills the physician/patient relationship when medical errors take place as the doctor who committed the error may fear anything he/she says might be used against him/her in court.  The result often leaves a patient with a cold defensive feeling from their doctor following the medical error or undesired result.  The Apology Statute seems to aid this and, at least in aspirational terms, seems to be a good thing for patients and doctors.  With the protection of the Apology Statute, the offending doctor can apologize for the error and explain treatment options going forward under circumstances where the patient feels empathy from the negligent physician.  One of the dangers of the Apology Statute is that the patient may feel empathy for the negligent doctor and less likely to pursue a medical malpractice case under circumstances where it is their only practical option.  More importantly, a patient may assume that a doctor's apology has legal significance and that the doctor is accepting responsibility for the consequences of the error or undesired result.  This may delay a patient's pursuit of legal options which, in the case of medical negligence, can be limited to one year from the date of the malpractice.  Of course, the patient has no legal recourse once the statute of limitations (1 year from date of malpractice) has expired.  Further, an apology from a health care professional does not prevent that person from denying fault in court should a malpractice action be necessary.   From the perspective of the patient, this can clearly be seen as a classic bait and switch.

This fear was realized for one patient in Ohio (and can be expected to occur to many others) following a recent Ohio Supreme opinion which extended the Apology Statute to apply to an admission of fault (not an apology) from a health care professional.  In the case of Estate of Johnson v. Randall Smith, Inc. the physician stated to his patient following a medical error "I take full responsibility for this.  Everything will be okay."  The Court held that this statement could not be used in the subsequent medical malpractice case brought against the physician when (in the eyes of the patient) everything was not "Ok."  This case serves as an example of how the Apology Statute can mislead patients and protect health care professionals.   In this case, the doctor's statement that he was taking "responsibility" would logically pacify the patient but the doctor later denied fault in court and the patient could not use his statement against him.   The result is a one way street that is certain to lead to legal problems for many patients who have or will be the victim of medical mistakes.

The opinion from this case can be found at http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-Ohio-1507.pdf.

While the automobile insurance companies flood the airwaves with clever commercials and catchy jingles about their low rates, accessibility, and commitment to “being there” for their customers, the reality is a much less personal, more anonymous, and an entirely bottom-line profit-maximizing business model, when it comes to claims adjusting, that far too often boils claim evaluation down to, “Don’t like it? So sue me.”

One of the most common complaints amongst our clients who have suffered injuries as the result of auto accidents is that they end up being made to feel more like a wrongdoer than a victim. This is especially common in claims like the ones on which this CNN article focuses – i.e., those accidents involving relatively minor property damage to the vehicles, but still resulting in injuries (http://www.cnn.com/2007/US/02/09/insurance.hardball/). The insurance companies know and love the popular misconception that only catastrophic or "serious" car crashes can cause real bodily harm, despite the countless cases where the impact of cars colliding (even at low rates of speed) causes damage to the people inside even when the bumpers do their job in protecting the cars (and insurers) from major damage (i.e., repair costs). For these lower impact accidents, insurance companies scoff at medical records and doctors’ opinions as to degree of injury, with insurance adjusters often relying instead upon their own “medical expertise” to determine that the resulting injuries couldn’t possibly be so severe as what the medical evidence says. In other words, the accident victim must be lying. Adjusters are trained to evaluate low impact accidents where treatment goes beyond 6-8 weeks as being medically unnecessary without any further consideration.

Insurance companies will frequently make a play to offer nominal settlement amounts to victims of their customers’ driving mistakes as soon as possible to avoid having to pay more if/when the injuries turn out to be more serious than just a bump or a scratch, which is especially common with the types of spinal injuries that often result from car accidents. And if you think that initial offer was unreasonable? Tough. An insurance company gets no benefit out of paying more or paying earlier. So the mantra becomes, "deny, delay and defend." (http://www.cnn.com/CNN/Programs/anderson.cooper.360/blog/2007/02/insurance-companies-fight-paying.html); (http://www.cnbc.com/id/36178055).

While popular opinion seems to be unkind to those individuals who hire lawyers to pursue insurance claims and take these insurance companies to court, what other options do the insurance companies give victims in these kinds of claims? As the CNN article poses it, the position has increasingly become, “Take it or leave it...” or, perhaps more accurately, “Take it or spend time, money, and energy fighting for more.” That uphill battle for fair compensation is a tough pill to swallow for anyone who’s already suffered due to a car accident. It’s unlikely to change anytime soon, but articles like this CNN report help raise public awareness regarding what those “good hands” and “good neighbors” are really up to, aside from collecting premiums.

If you or a loved one are injured in an automobile collision and are getting this kind of run around from an insurance adjuster, call the attorneys at NRS Injury Law.

American restaurant goers and consumers are frequently injured by foreign objects in their food. Examples of foreign objects recently found in food reportedly include glass, gravel, rocks, metal, jewelry, wood, plastic, cigarettes, gum, feces, hair, blood, human fingers, fingernails, insects, rodents, bones and other animal parts. In certain cases, a food manufacturer, restaurant or preparer can be held liable for injuries caused by foreign objects. Any victim should consult with the attorneys at NRS Injury Law to inquire about their legal options.

Foreign objects in a food products pose several health concerns. First, while being chewed or swallowed, hard or sharp foreign objects can cause injury to someone’s teeth, jaw, tongue, or throat. After being swallowed, the foreign object can also injure your stomach, intestines or rectum. The objects also pose a choking hazard. The object can become lodged in your throat and result in brain injury or even death. In rare cases, surgery is required to remove the foreign object. Finally, individuals who have eaten food contaminated with foreign objects often suffer food poisoning. Non-food objects often cause food poisoning for because they can be the source of pathogenic bacteria and impede or interfere with proper cooking of the food.

Persons injured by foreign objects in food may be entitled to assert legal claims and seek damages from any entity whose oversight allowed the foreign object to be undetected prior to sale or service of food. In some circumstances, the food’s seller can be held liable for the consumer’s damages. Depending upon the facts of the case, tort claims against the manufacturer, preparer or seller of the food product. If there is evidence of an intentional alteration of the food with a foreign object, then the victim may also be able to assert additional claims.

Not all food related injuries involve objects completely foreign to the food. Injuries can occur when consumers eat parts of the food including bones, seeds, shells, or stems which are naturally occurring and normally associated with the particular type of meat, seafood, produce or other food. Historically, this distinction between “foreign” and “natural” objects was very important. Indeed, Ohio has recently adopted what is known as the “consumer reasonable expectations” test. Under this standard, whether the injurious object was foreign or natural is considered a relevant fact, but it is not the dispositive issue. Rather, the focus is upon whether the non-food object was something the consumer could reasonably expect to possibly encounter and for which caution was needed during consumption of the food. For example, a consumer arguably would not reasonably expect to bite into or swallow a chicken bone while eating canned chicken soup or a product labeled as “boneless chicken.” On the other hand, a restaurant patron arguably should anticipate that he might encounter bones if he orders a T-bone steak. Under the “consumer reasonable expectations” test, the consumer of the soup or boneless chicken might be able to recover damages whereas the restaurant patron would likely have a more difficult time holding anyone liable for his injuries. Neither case would fail, though, because the bone is considered to be a “natural” substance normally associated with the food. Instead, the outcome of each case will depend upon various facts which impact what the consumer could or should have expected when he purchased or ordered the particular food in question.

Related Blog: Food Poisoning Victims May Be Entitled to Substantial Compensation

If you are injured by a foreign food object there are several helpful steps to follow. First, if you are at a restaurant, keep the food exactly as it existed when the object was discovered and immediately alert the waiter, waitress, or manager. If possible, request that a written report be prepared. Keep all evidence and do not allow it to be taken from you by the restaurant. You should also ensure that you get a receipt or written record of the contaminated food product. You should also immediately seek medical attention if the foreign object is swallowed, causes injury, or leads to food poisoning. Finally, it is very important to keep all evidence including any of the foreign object and all packaging materials which contained the food. Any perishable food evidence should be kept in a refrigerator or freezer. If the evidence cannot be stored or could change over time, it should be photographed and/or videotaped as soon as possible. Also, any visible injuries should be photographed as well.

Once you receive medical attention, you should notify the food company or restaurant which manufactured or prepared the food about the incident. It is also helpful to notify the Ohio Department of Health if the food or beverage was prepared or served at or by a restaurant, bakery, catering company or similar establishment.

It is highly recommended that if you are injured by a foreign object in your food that you contact the experienced lawyers at NRS Injury Law to discuss the facts. Do not sign any papers or give a written or recorded statement until you have consulted with an attorney. Form more information, contact the Cleveland personal injury attorneys at NRS by filling out our contact form or call NRS Injury Law at (855)GOT-HURT.

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