Cooper & Elliott Blog

A Conditional Settlement Helps One Family Heal

Posted on Thu, Apr 20, 2017 @ 6:48 PM

As Ohio civil litigation attorneys, our focus is always on one thing: to help our clients find justice and hold the wrongdoers accountable. That means taking the time to understand our clients’ point of view and the extent of their pain. It means digging for the facts and going beyond the obvious to uncover what’s critical.

It also means, for each case and every client, determining what constitutes genuine justice.

Money alone is rarely sufficient, especially when the case involves a wrongful death or life-altering injury. What makes someone whole after a devastating loss? Are there ways not only to compensate for damages but also open possibilities for bringing an individual or family closer to healing?

A case of mistaken location

Let’s revisit a case we first brought to your attention last year. It’s a case rapidly moving toward a final resolution. It provides a prime example of how a settlement agreement can not only compensate for a loss but begin to render meaning to a family tragedy.

The case involved the wrongful death of Dorothy Kramer*, an elderly woman who lived in an assisted-living center. One morning, alone in her apartment, Dorothy pressed the emergency pendant she wore around her neck to summon emergency medical attention. The alarm was one of the services provided by the center, and it summoned an EMS unit just as it was supposed to do.

But it failed to bring them to Dorothy.

The EMS team was directed to the wrong address, across the hall from Dorothy’s apartment. Because false alarms in these situations are not uncommon, the EMS team decided that they must have been called in error, and left the premises. No one checked on Dorothy.

She was discovered hours later—alone, sitting in a chair, still clutching the alarm that she and her family had believed would prevent her from dying unattended.

Plenty of blame to go around in wrongful death

Of course, Dorothy’s passing in this manner was a tragedy. It certainly didn’t have to happen the way it did. Safeguards had been instituted to assure that appropriate emergency medical attention would be available as needed. Yet somewhere there had been a breakdown in the system, leading to a result no one wanted.

Naturally, the Kramer family wanted answers. Why did this happen? How could this have happened? But satisfactory answers were not forthcoming, so the family came to us.

There were three main players in this drama, and instead of accepting appropriate responsibility, all three were busy pointing fingers of blame. The company that owned and operated the senior living center denied any responsibility for the failure of the alarm system to perform as promised. The company that manufactured and installed the alarm system denied any responsibility for the failure of the EMS response team to make sure it had arrived at the correct address. And the company that monitored the alarm system and sent the EMS unit denied any responsibility for the system’s failure to correctly identify Dorothy’s location.

With each of the parties refusing to accept responsibility, we filed a civil lawsuit against all three companies.

Settlement discussions have been under way with the three companies, each of which is finally beginning to cooperate. In fact, we’re nearing the point of closure and don’t anticipate this case going to trial. And here, that’s a good thing. We think a settlement—without a trial—will be in the best interest of our client because a settlement is the only way to achieve an important condition that doesn’t involve money.

Salvaging some good through a settlement

Money will always be part of the compensation for damages in a civil litigation case. But so often, that’s only the starting point. What families, victims, and survivors really need is the closure that must happen before real healing can begin. They need answers. They need meaning, drawn from the knowledge that some good can be salvaged from their loss.

In this case, the Kramer family found some additional meaning through a condition we negotiated as part of the settlement. The company that owns the senior living facility will be required to test the alarms it provides its residents. To assure enforcement of this provision, the company must produce a signed, notarized certification that the tests were completed successfully.

This provision applies not only to the facility where Dorothy lived but to all the facilities owned and operated by the company. That amounts to more than 300 facilities in 38 states.

Such a requirement is possible only when there is a settlement agreement. A jury’s scope is limited to determining responsibility and awarding suitable financial compensation. What the jury can’t do is impose a condition on any of the parties in the litigation.

A condition such as the certified testing of literally hundreds of alarm units must be agreed to by the parties involved.

It represents an extra step in the civil litigation process, one that the client’s attorney must be committed to pursuing. But as in the case of Dorothy Kramer, it’s one step that will benefit all parties involved, including future residents of Dorothy’s senior living facility. Their lives will be better protected because of the Kramer family’s foresight and its commitment to doing what’s right.

If you find yourself in a similar situation, don’t hesitate to reach out to us. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Seeing is Believing: The Benefits of Forensic Animation

Posted on Tue, Mar 28, 2017 @ 3:19 PM

In a personal injury or wrongful death case, the jury must understand the difference between what happened and what should have happened in order to deliver a just verdict. It’s our job to make sure jurors understand the evidence so they can sort out the truth about a case. Our success hinges on establishing a connection with jurors, and then effectively communicating to them the significance of the evidence we present.

We work with expert witnesses to help explain evidence. Sometimes the timing and physical nature of events in a case are complex, and demonstrative evidence, such as images and video, comes in handy. Visual evidentiary exhibits often have more power to communicate and can be more memorable than words alone. But static images and videos taken from a single point of view have limitations.

Enter forensic animation, an emerging technology in demonstrative evidence, which is playing an increasingly larger role in civil litigation.

How forensic animation brings a case to life

Video or photos taken at the scene of an event can only present facts from one perspective and therefore can’t always tell the whole story. Forensic animation, on the other hand, virtually recreates events—and can do so from multiple perspectives. In addition, it can slow down action or zoom in to reveal critical details.

Using full-motion computer graphics to recreate events, forensic animation can help jurors visualize a car crash or an assault crime, and it can even demonstrate a product failure that resulted in a personal injury or wrongful death.

Forensic animation relies on the same computer-driven technology used in action films and the same advanced forensic science used by law enforcement. The images are compiled from a variety of sources and perspectives: police officers, forensic experts, engineers, eyewitness statements, security and body cameras, even autopsies.

For a car crash, the simulation would include data gathered at the scene, details about the terrain, weather, and traffic conditions at the time of the accident, police photographs, and more.

In medical malpractice cases, computer-aided animation, or medically demonstrative technology, is used to explain medical conditions or injuries.

In other types of civil litigation cases, the goal is the same but the subject matter is different. Take an example from a few years ago. It involved a high-speed car chase in Cleveland that led to officers shooting a suspect. Because there was sufficient video of the chase and the shooting, from several perspectives, an animation was made that re-created the event in comprehensive detail—even to the point of following the paths of individual bullets. Forensic animation filled information gaps, leaving little doubt as to how the event played out.

There is usually a wealth of information available with which to build an animation if attorneys are willing to put in the effort to find it. (And, of course, we are.)

Demonstrative evidence provided, jurors decide the truth

Forensic animation likely never will replace other types of evidentiary exhibits in civil litigation cases. Nor will it replace expert testimony. But it is a powerful tool that enhances both. There will still be times when we want to use a good old-fashioned photograph, blown up, mounted on poster board, and placed in front of the jury for an extended period of time. We can’t do that with an animation.

Civil litigation attorneys can use these tools to support their respective cases, but at the end of the day, it’s up to the jury to determine the truth.

The key for us is knowing which demonstrative evidence tools to use, and when, in order to build our clients’ cases most effectively.

 Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Going the Distance and Then Some

Posted on Thu, Feb 9, 2017 @ 5:18 PM

When beginning the process of buying a car, you go in with an idea of what you want and what is available. You research makes and models and learn about what they offer—you might even visit a dealership and do test drives. “Shopping” for an attorney is more complex. You don’t really know what “features” you will need or what kind of questions you should ask.

If you are in need of a civil litigation attorney, chances are your frame of mind is teetering between stress and anger and perhaps even grief. All you really know is what you want in the end: justice.

Once in a while, we’re asked, “What makes your law firm different from any other?” It’s a fair question. Sure, we can talk about what we do that makes our firm different—but it’s how we do it that’s more important.

Most law firms talk ‘what,’ not ‘how’

When prospective clients ask what makes us different from other law firms, it’s difficult to make that comparison. But we do know there is a difference—an important difference—that comes across when we face other attorneys in negotiations and in the courtroom.

It’s the difference between “what” and “how.”

Most legal firms are happy to tell you all about “what” they do: the cases they take, the number of cases they’ve won, the expertise they will bring to your case. That’s all fine, and even necessary. But we think it’s more important to talk about “how” we do our job, and what clients can expect when working with us.

The differentiating “how” for us is two-fold: how we get the information that makes or breaks a case, and how we relate to our clients.

Tenaciously pursuing facts

When you’re going into battle, there is no such thing as having too much ammunition. In civil litigation, the same is true with information—it’s the ammunition we bring to fight for our clients’ causes. We always want more information, and we nearly always have to dig to find it. (And then dig some more.)

We take nothing for granted. We never really know where information will lead us until we start digging. We try to interview every potential witness and talk with every expert who can help us gain insights that opposing counsel may not have.

We push for every document we can get. For example, we represented a family in a wrongful death case that involved an emergency unit that responded to the wrong address. At first, we were told that critical documents no longer existed. But we weren’t satisfied with that answer and continued to push for information. When the defendants started pointing fingers of blame at each other, those documents “miraculously” appeared.

We also make site visits. If a case involves an automobile accident, we go to the site of the crash. We want to be at that intersection, see the traffic and landmarks that our client experienced. We want to understand what happened better than the opposing attorneys (who, often, haven’t been there at all).

Behind every case is a person

When we represent businesses that have been victimized by neglect or fraud, we keep in mind that behind every business is a business owner, employees, and their families. In each case, there are real people who have suffered harm they didn’t deserve.

The same is true in wrongful death cases. We represent grieving survivors who are trying to put their lives back together, often financially as well as emotionally. It’s not just a matter of applying the law to achieve justice. We’re in the business of helping people heal their lives.

It means understanding our clients on a deeper level—their lives, their relationships, the pain they’ve endured. In one case, we visited the grave site of a young boy who had been killed when an unsecured stove tipped over onto him. We saw toys and other mementos placed at the grave by the family, and that gave us the opportunity to ask about those special things and learn more about the family and the child they had lost.

Our professional DNA aligns with the Golden Rule. We ask ourselves important, fundamental questions: How would we want to be represented? If we were the victims, how far would we want our civil litigation attorney to go for our case? How much time and commitment would we want them to dedicate to our healing?

That’s not just our practice. It’s who we are.

Give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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A Child’s Wrongful Death Leaves a Legacy of Hope

Posted on Tue, Jan 31, 2017 @ 7:40 PM

The death of a small child is a tragedy no family should have to endure. But sometimes it happens, and the family members must carry the grief with them for the rest of their lives.

In a wrongful death case, a family sues the party responsible for the death of their loved one. If during the lawsuit, the family decides to settle the case, they might insist that part of the settlement includes action that will make such tragic events less likely to happen in the future. To look beyond your own grief and try to do what’s right for others takes a special kind of strength—and it helps to have Ohio wrongful death attorneys who are willing to look beyond the obvious to make it happen.

A family’s daily struggle turns tragic

It was fall when the Smith* family moved into an apartment complex in central Ohio. The complex, which had been purchased three years earlier by an out-of-state company, was run down, and the new owner did little to make upgrades or basic repairs. On moving day, the Smiths found themselves in a unit that was in much worse condition than the one they had been shown when they signed their lease.

As winter came and the temperature dropped, the Smiths noticed the heating system for their apartment was not working well. They made numerous attempts to get the property’s management team to address the issue, but by February the heating system was still not fixed.

The Smiths—with three small children, ages 2, 4 and 7—did what other families in the complex were doing to make their winter days livable. They used an electric space heater, covered drafty windows as best they could with plastic, and, on the coldest days, resorted to turning on their apartment’s old electric stove.

One morning, Mrs. Smith was in the back bedroom with her 2-year-old daughter, while her 4-year-old son was playing a video game in another room. At one point, Mrs. Smith heard the game become idle and asked her daughter to find out where her brother had gone.

The little girl came back and said, “He’s in the oven.”

Wrongful death and a family’s grief

Mrs. Smith rushed to find her 4-year-old son with the stove tipped over on top of him, his lower half trapped in the oven. While we may never know exactly what happened, it seems the boy had tried to climb on the stove, causing it to tip over onto him and pin him to the floor. He couldn’t call out, or even breathe.

His mother tried to administer CPR and called 911. The emergency squad arrived, but it was all to no avail. The little boy had died from asphyxiation from being pinned under the stove.

The Smiths struggled with their grief and feelings of guilt for nearly 18 months before they contacted us about a potential wrongful death action. That kind of delay is not unusual in cases like this. Families need time to deal with the impact of the tragedy, and with feelings of guilt that, in cases like this, are unavoidable but never deserved.

The weight of property management negligence

As the Smiths’ attorneys, we investigated how a stove could be tipped over by a 4-year-old child. We talked to maintenance personnel, responders to the scene, and officials for the city where the apartment complex was located. We interviewed industry experts and spent a great deal of time putting together the history of stoves, how they’re made, and if there were steps that the property owners should have taken to prevent the child’s death.

As it turned out—there were.

Older models of electric stoves were prone to being top heavy, and to prevent them from tipping, oven manufacturers began requiring that anti-tip brackets be installed to secure the stove to the floor. That safety standard had been in place since 1991. The Consumer Product Safety Commission did a study about anti-tip brackets, and there have been several notable lawsuits filed over the years regarding failure to use them.

It’s a fix that takes about 10 minutes and costs about $10. And in this case, the brackets would have saved a child’s life. But they were never installed.

We learned from members of the maintenance crew that they had started to install the anti-tip brackets in some units but were instructed not to because it was slowing down their work orders. That left some stoves in the apartment complex with brackets. It left others, like the Smiths’, without brackets, waiting to tip.

A settlement for the sake of safety

We filed a wrongful death suit on behalf of the Smiths, but after much investigation and a round of mediation, the family reached a settlement with the property management company.

In cases like this, a settlement has some advantages over going to trial. First, it’s less time consuming and costly for all parties. It also allowed the family to avoid reliving their trauma again and again while preparing for depositions and trial. But, perhaps most importantly, a settlement allows plaintiffs to ask for conditions beyond money. In a trial, all a jury can do is award money. It’s a horrible substitute for the loss of a child, but it’s all a jury can do.

The Smiths, to their credit, wanted something more. They wanted to be sure that some good could come out of the tragedy of their son’s death. As part of their settlement, they asked that the property management company prepare and issue a public service announcement to alert other property owners about the importance of using anti-tip brackets.

Hopefully, you never find yourself in a similar situation, but if you do, don’t hesitate to reach out to us. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 *Names in this article have been changed to protect our client’s privacy.

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Misjudgment and Medical Malpractice Derail a Young Man’s Life

Posted on Tue, Jan 10, 2017 @ 4:45 PM

You seek the services of professionals—whether they might be accountants, consultants or even Ohio medical malpractice attorneys—because they have three things you need:

  • expertise in their field
  • the skill to use that expertise effectively
  • the judgment to do what’s right, and what’s best for their clients

The same is true when you go to a physician. You rely on the doctor’s expertise, skill and judgment to treat your affliction. Sometimes, though, a physician’s judgment falls short. A questionable decision can leave patients damaged for life, shattering their future and crippling their self-esteem.

When a doctor makes a decision that no competent doctor would make, and the doctor’s decision hurts a patient, that’s medical malpractice. And when a client suffers due to such a breach of trust, that’s when we step in.

As attorneys, we can’t repair whatever physical damage might have been done. But we can help clients hold their physician accountable for decisions that have harmed them. And when that’s done, our clients can begin to rebuild their lives.

A simple procedure goes awry—why?

Our client, Brad Pullen*, entered the hospital with a neck infection that was causing him considerable pain. When he left the hospital, he no longer had functional use of his right shoulder.

Brad suffered from a branchial cleft cyst. It is a congenital birth defect where certain tissues in the neck fail to form properly, leaving an open space called a cleft sinus where a cyst may develop. The cyst itself is not dangerous unless it becomes infected.  This type of infection can be very painful, but is often treated effectively with antibiotics.

To prevent future infections, doctors usually recommend surgery to remove the cyst after the infection has been treated. The normal procedure is to use antibiotics for three to four weeks to ensure that any infection has been cleared up before attempting surgery.

In Brad’s case, however, that procedure wasn’t followed.

A hasty decision results in medical malpractice

The physician who examined Brad diagnosed the branchial cleft cyst infection on a Friday. Brad was put on high-dose antibiotics immediately, and by Sunday his condition had noticeably improved. The swelling was down, and Brad’s pain was dramatically reduced.

Then the physician made a decision that has never been fully explained: He recommended surgery immediately to remove the cyst, rather than waiting the three to four weeks for the infection to clear. The problem was that traces of the infection had inflamed the tissues, making it difficult for the surgeon to see important nerves in the area where he was going to operate.

The surgeon operated on Brad the next day. While the cyst was successfully removed during the surgery, the physician inadvertently severed the spinal accessory nerve, which controls movement of the shoulder and arm.

Brad effectively lost the use of his entire right shoulder and arm.

A life derailed by negligence

Had the nerve been reattached immediately, the damage could have been minor. But after removing the cyst, the surgeon never checked to see if he had accidentally cut a nerve—something a reasonably competent surgeon would have done. A devastating injury resulted from a mistake that could have been avoided had the physician waited the appropriate amount of time to operate, or checked to see if he had done damage to nearby nerves.

Brad was just 23 at the time of the surgery and was studying to be a culinary chef. The injury to his shoulder and arm halted his pursuit of that career and severely limited other job opportunities as well. The family’s plan for raising children was also disrupted: His wife had planned on staying home and raising their three small children while Brad pursued his culinary career and provided for the family financially.

That was only the beginning. A later surgery tried to reattach his spinal accessory nerve but was unsuccessful. Brad also developed a winged scapula, a protrusion of the shoulder blade resulting from the nerve damage. That condition required surgical reconstruction of the shoulder, and years of painful physical therapy.

Hope for the future

On Brad’s behalf, we filed a medical malpractice suit against the physician. In our opinion, the suit should have been resolved quickly through negotiation with the physician and his insurance company. But recently, doctors have been winning the majority of medical malpractice cases, and that has emboldened many of them to go to trial rather than settle out of court.

Medical malpractice litigation is notoriously complicated and arduous as it is. In Brad’s case, the process took six years before he received a substantial verdict in his favor that could give him options for putting his life back on track. While the verdict doesn’t fix Brad’s shoulder, it does give him an opportunity to invest in a business, or even pursue education and training for a different career.

Results that deliver a powerful message

Hopefully, Brad’s favorable verdict will have a legacy that goes beyond this one case. It reinforces the message to physicians that their judgment is just as important as their medical expertise and skill. A high volume of patients is not what builds a healthy practice—healthy patients build a healthy practice.

Treatment shortcuts too often result in outcomes that can be life-damaging. As medical malpractice attorneys, we’ve witnessed over and over how heartbreaking that damage can be. If you think you’ve been a victim of medical malpractice, please give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 *Names in this article have been changed to respect our client’s privacy.

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Catching Up with CSI: Medically Demonstrative Technology

Posted on Fri, Dec 16, 2016 @ 5:10 PM

We have tried many personal injury and wrongful death cases over the years, and there have been plenty of instances where we’ve asked medical experts to testify about what did or didn’t happen to the plaintiff. Jurors have enough information to process throughout a trial as it is, and expecting them to comprehend in just a few hours what might take medical professionals years to understand is asking a lot. Thanks to advancements in medically demonstrative technology, conveying information to a jury has become much more efficient.

Uses of medically demonstrative technology

In the past, expert witnesses have used anatomical models, illustrations, or photos to demonstrate medical conditions and injuries to judges and juries. Today, computer programs and applications have replaced some of those methods and offer experts more sophisticated tools for use in court.

Animation allows juries to see more accurate, real-time and to-scale representations of injuries or medical conditions. CT scans and MRIs not only offer more detailed visuals, they allow juries to see evidence of the plaintiff’s actual injuries instead of having to conceptualize them from a generic diagram or photograph. We once showed a jury an animation of how oxygenated blood moves from a mother to her baby before the baby is born. This was much easier to grasp than a static presentation with a lecture ever would have been.

Applications and programs

Innovative programs and apps represent further leaps forward in medically demonstrative technology. One of the latest lets a jury view specific parts of the body in detail. An expert or attorney can pull up the application on his or her iPad and view the human body layer by layer—they can choose to display the skeleton, or the digestive system, or the nervous system, etc. It’s an excellent way to give juries a close-up look at the human body—and to keep the jury’s attention.

An expert on the witness stand explaining a nerve injury can click an image to show exactly how an injury occurred from multiple angles. The expert can show the view that a surgeon would see while operating, and illustrate (for example) where the surgeon made an error. It’s far more vivid and effective than an old-fashioned two-dimensional presentation.

If you’re thinking you’ve seen something similar on television recently, you probably have. It’s the kind of tech that CSI and other shows have used for a long time—though it’s taken longer to make its way into real-world courtrooms.

Giving expert witnesses authority

Another advantage of medically demonstrative technology is that it gives expert witnesses more authority. Equipped with medically demonstrative tech, expert witnesses become teachers who can show how something happened and why, rather than just lecturers who recite their version of an event. To a jury, a teacher who can demonstrate what happened and why is more appealing than a dry lecturer. Plus, when an expert witness projects the authority of a teacher, it’s harder for a defense attorney to accuse the expert of not being objective.

As is the case with any witness, however, there are sometimes questions of accuracy when experts use medically demonstrative technology. Judges want to know if the software program or app is correctly showing what it claims to show. As such technology becomes more commonplace, precedent can help establish its accuracy. Nevertheless, we still make sure our experts can vouch for the technology they use in each individual case. In the case of an app that creates a custom model from actual medical records, for example, we need to be sure the model is accurate and that the expert is familiar enough with the model to say so.

We also must ensure the technology presents a model clearly and accurately because we may only have one opportunity to present it to a jury. Much of the time, jurors can’t ask to see a medically demonstrative technology display again the way they can re-examine a photo or medical record that has been entered into evidence.

Personal injury or wrongful death case?

We believe it’s important to use every available tool to fight for our clients in personal injury or wrongful death cases, and medically demonstrative technology is but one of those tools. If you’ve been harmed and need legal assistance from Ohio civil litigation attorneys who work only with the best experts and tools, give us a call.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Qualified Immunity: A Necessary, But Not Absolute Privilege

Posted on Thu, Dec 8, 2016 @ 11:07 PM

Lately, it’s not surprising to turn on the news and see a case involving a police officer who’s been accused of using excessive force. The circumstances all vary but are nonetheless emotionally charged and often involve a legal doctrine known as qualified immunity. As Ohio civil litigation attorneys, we’d like to shed some light on qualified immunity and its legal implications.

The purpose of qualified immunity

Qualified immunity is a privilege often asserted by police officers, prison guards and other law enforcement or government agents to defend against a civil rights lawsuit. Its purpose is to strike a balance between the need for an official to act in difficult situations where split-seconds matter, and the need to protect the rights of those with whom the official comes into contact. The doctrine exists because we have to give government officials a certain amount of leeway to allow them reasonable discretion and personal safety in the performance of their jobs. No one would want to be a police officer if it meant the possibility of personal liability for every single action taken on the job.

However, qualified immunity is not a blanket protection for anything a person might choose to do in his or her official capacity.

Precedents determined by civil rights case rulings

Whether a defendant has qualified immunity depends on whether the defendant acted reasonably given the specific circumstances. When a defendant asserts qualified immunity, the defendant is saying, “Even if I violated the plaintiff’s constitutional rights, I can’t be liable because it wasn’t clear beforehand that my conduct was a violation.”  The question is usually decided in terms of legal precedent—what courts have specifically held in similar cases.

Imagine a situation in which an officer strikes a handcuffed suspect with a baton. Whether the officer’s actions are considered excessive will depend on the specific circumstances. Was the suspect standing or sitting peacefully, posing no threat to the officer or anyone else? In those circumstances, courts have held that the baton strike is excessive and therefore a violation of the suspect’s constitutional rights. But what if the suspect was kicking or head-butting the officer? Many court cases have held that it’s permissible to strike a restrained suspect in that situation in order to protect the officer and others. The question can become even more nuanced—What if it takes only one or two baton strikes to subdue the suspect, but the officer continues with several more strikes after the suspect no longer poses a threat? Courts faced with that scenario may hold that the later strikes violated the suspect’s constitutional rights, even if the first one or two did not. Whether an officer is immune can come down to specifics like how many times the officer struck the suspect. So, if we were representing a suspect in a civil rights case against the officer, we would want to know if a court decision had ever addressed the specific details of our client’s case.

Validating qualified immunity assertions

When we go to bat for a client who believes an official has gone beyond what the law allows and violated their civil rights, we frequently end up facing an assertion of qualified immunity. Handling such cases requires a close examination of any precedents that seemingly immunize the official. Sometimes we can prove the law was badly applied in those cases, or that the facts in our case are different enough that immunity shouldn’t apply.

We look for evidence that would indicate that the official knew or should have known their actions were violating our client’s rights. In other words, we look at whether courts have issued decisions in cases involving the same circumstances as our client’s, or circumstances that are similar enough that the same rule would clearly apply. We also look at the official’s training and prior incidents, if any.  If we can prove that the official should have known better, we can defend against qualified immunity.

Misuse of qualified immunity

While qualified immunity protects officers and government officials and enables them to carry out their duty to protect the community, there are facets of the provision that some defense attorneys abuse.

For example, a defendant can ask the judge to dismiss the case on qualified immunity grounds before trial by filing a motion to dismiss or motion for summary judgment.  Most of the time, if a judge rejects a defendant’s motion to dismiss or motion for summary judgment, the defendant has to wait until after trial to appeal the judge’s legal decision. But qualified immunity is different. If a judge rejects a qualified immunity defense, the defendant can immediately appeal, and the appeal must be resolved before the case can continue to trial.  Trials can be held up for a year or more as a result.

Qualified immunity was created for a reasonable purpose, but it can be abused and provide cover for acts that are true violations of a citizen’s constitutional rights. If you have a civil rights case against a government official, it’s important that your attorneys be experienced in exposing faulty qualified immunity assertions.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Subrogation, Private Health Insurance and Your Personal Injury Settlement

Posted on Tue, Nov 29, 2016 @ 12:39 AM

In previous articles, we’ve shared the basics of subrogation and how it relates to Medicare and Medicaid. The rules that govern subrogation for Medicare and Medicaid are different than those for private health insurers. In this article, we’ll discuss subrogation as it relates to private insurance and ways we can help our clients minimize its effects on their personal injury settlement or judgment.

Private insurance subrogation laws

Unlike Medicare and Medicaid, in which subrogation rules are part of the laws and regulations that govern the programs, private insurance subrogation rules are contained in insurance contracts. And while Medicare reduces its subrogation to account for fees and costs, and Medicaid limits the amount of a settlement that can be taken via subrogation, private insurance may have no such restrictions.

Unfortunately, many people get health insurance through their employer (or the Affordable Care Act), and there’s not a lot of room for shopping around and the contract terms are non-negotiable.

Example of a worst-case scenario: In a car accident, when one driver is hit by another, the victim’s health insurance company pays $50,000 to cover the medical expenses. A lawsuit is filed against the offending driver, but because the driver has minimum auto insurance limits, it recovers only $25,000. The language in the injured person’s health insurance contract might give their insurer the right to recover every dollar it paid on their behalf originally. So, the $25,000 recovered in the lawsuit would go directly to the plaintiff’s health insurance company.

It’s hard to understand, given that people pay premiums for their health insurance and expect that they’re getting something for what they paid for. Many are shocked to learn that their insurer doesn’t have to bear the risk of having to pay their medical bills.

Ohio civil litigation attorneys examine the fine print

Frequently, there are ways we can fight subrogation claims on our clients’ behalf. First, we try to make sure our clients pay no more than they’re legally obligated to by diligently reviewing the language in the insurance contract. Unless the contract uses certain proper and precise language, the insurance company may not be able to make a claim on the settlement at all. There are some conditions that could prevent subrogation claims:

  • No contract – Insurance companies are sometimes unable to produce a written contract for examination, but they might try to assert a subrogation claim anyway. Without having a contract to back up such a claim, they’re out of luck.
  • Timing – We check to make sure that the exact subrogation language in the contract the insurer is trying to apply was in effect at the time of the accident. For example, if an accident occurs in 2015, but the subrogation language in the contract didn’t go into effect until 2016, then it can’t apply to that case.
  • Agreement with state law – Some private health insurance contracts are governed by state law. In those cases, if the contract language in question doesn’t meet the requirements of Ohio subrogation law, the insurance company may not be able to claim some or all of what it paid.

What if the subrogation language is binding?

Even if we’ve verified that the contract language is sound and the right to subrogation as written in the contract is valid, we still have options. Insurance companies don’t want to spend a great deal of money collecting subrogation payments, so the possibility of having to go to court often prompts a company to negotiate.

Another option—we sometimes think of it as the secret weapon—is to negotiate a reduction of the subrogation claim by threatening to drop the lawsuit altogether. The threat of exercising this option can persuade the insurance company to negotiate on subrogation because without the personal injury case, there would be no settlement from which to collect. This approach is absolutely one of last resort, of course. But if the subrogation claim would swallow up all of our client’s recovery, it may be the only way to get the health insurer to negotiation.

There are many things to consider when you’re facing the threat of losing a personal injury recovery to a subrogation claim. If you could use some assistance navigating a messy subrogation battle, give the Ohio civil litigation attorneys at Cooper and Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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How Subrogation Works with Medicare and Medicaid

Posted on Tue, Nov 15, 2016 @ 4:52 PM

In our last post, we outlined the basics of subrogation. Briefly, subrogation is the right of someone besides an injured person to recover something out of a personal injury case.  Subrogation works differently depending on the type of insurance involved. Medicare and Medicaid have different sets of rules from private insurers. In this post, part two of the series, we’ll discuss subrogation as it relates to Medicare and Medicaid.

How subrogation works with taxpayer-funded insurance

Medicare and Medicaid are government run programs, funded by taxpayer dollars. The intent of subrogation in these programs is to offset taxpayer responsibility for the related healthcare costs.

Subrogation rules are written into the statutes that govern Medicare and Medicaid. Virtually always, if Medicare or Medicaid paid medical expenses incurred because of a personal injury, there will be at least some subrogation payment from a personal injury judgment or settlement. But the good news is that—unlike the subrogation rules for private insurance—the Medicare and Medicaid subrogation rules take the plaintiff’s costs and other circumstances into account.

Medicare

In a case involving Medicare, the subrogation payout is set by a formula. The amount paid is reduced in proportion to the plaintiff’s attorney fees and expenses.  This is an attempt to account for the fact that the plaintiff incurs costs and attorney fees from pursuing a settlement or judgment.

Recent changes in Ohio Medicaid subrogation law

The rules for Medicaid can vary from state to state because unlike Medicare, which is a federal program, Medicaid is run by individual states. Some recent federal rulings have led to changes in Ohio law about Medicaid subrogation.

In personal injury cases where Medicaid had paid for medical expenses and the expenses exceeded the plaintiff’s settlement or judgment, Ohio law used to provide that 50% of the plaintiff’s recovery represented medical expenses applicable to medical bills. But in many cases, a smaller percentage of the plaintiff’s recovery represents medical expenses, and the larger percentage compensates for pain and suffering, or other costs. That meant that it wasn’t especially fair for a Medicaid subrogation claim to be based on 50% of the plaintiff’s recovery when only a fraction of that was intended to compensate for medical bills.

The U.S. Supreme Court recently ruled that states can no longer require that a fixed percent of any recovery is subject to Medicaid subrogation. Subrogation payouts are applicable only to the part of a settlement that represents compensation for medical bills paid by Medicaid and not compensation for pain and suffering or other costs. The ruling is logical, given that subrogation is supposed to help offset the cost of medical care paid for by the government.

Also, this court ruling means that the subrogation amount must be in the proper proportion to the judgment, based on the facts of the plaintiff’s case. Attorneys can work to protect portions of the judgment from subrogation, and they can make sure there’s an administrative hearing if the proportions are disputed.

Getting the percentage right

Ultimately, our goal with Medicare and Medicaid cases is to make sure that when the subrogation formula is applied, it’s applied for the correct medical costs (not for unrelated expenses or ones incurred before or after the events for which the plaintiff recovers), and that it applies only to the appropriate portions of the recovery.

Subrogation involving private insurers can be very different, because the rules are part of each individual insurance contract and not set specifically by law. We’ll discuss that in a future post. But whether your case involves subrogation or not, give the Ohio civil litigation attorneys at Cooper and Elliott a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Subrogation in Personal Injury Cases – Why, and What Is It?

Posted on Tue, Nov 8, 2016 @ 5:42 PM

For people who have been harmed by someone else’s wrongdoing, a civil judgment or settlement is a crucial step towards healing. That healing includes the emotional release that comes from a court agreeing that they were not at fault, but it also includes the only remediation our court system is permitted to offer—money.

However, for many of those people, that financial relief could disappear suddenly because of a common clause in their insurance policy—the subrogation clause. In brief, subrogation allows an insurance provider the right to reclaim some or all of what they paid for medical care from a patient’s civil judgement or settlement. Medicare and Medicaid have subrogation rights under the law, and many private insurance policies have subrogation clauses in one form or another.  But that doesn’t mean you have no recourse.

Over the course of this 3-part series, we’ll be looking closely at what subrogation is, and how it can be minimized.

Subrogation in public vs. private insurance

To understand the details of subrogation, it’s important to first understand that there are two different kinds of insurance providers and they each handle subrogation differently. The first is public, funded by the government, through Medicare and Medicaid. Subrogation is part of the law for Medicare and Medicaid programs. In nearly all applicable cases, some subrogation money will be taken. Even after trying to negotiate the amount down, there’s often still a minimum amount these government programs will take, and there’s no escaping it. But at least for Medicaid cases, the law also caps the amount, which assures that the injured party will get to keep at least some of the settlement.

The other type of carrier is, well, everybody else—all private insurers. Although their right to subrogation is also governed by state or federal law, rules for subrogation primarily depend on the written terms in the insurance contracts these companies sell. Some contracts may say little or nothing about it (thus you may be able to avoid subrogation claims altogether). Others may contain some very potent language, and the insurer may have the right to take your entire settlement to cover the amount they paid out.

How is subrogation possible?

The most common reaction we get when people learn about subrogation is shock. It makes sense to assume the money you pay for insurance, either through premiums or taxes, is supposed to purchase coverage. It doesn’t seem fair for insurance companies to then take part of the judgement or settlement as well. The counter-argument is that you signed a contract and are therefore beholden to the terms of that contract—no matter how unfair they seem.

The problem is that you may not have had much choice in the matter. If you get your insurance through your employer (or the Affordable Care Act), it’s a take-it-or-leave-it situation. You, as a single private individual, can’t negotiate the contract language. You’re stuck with whatever subrogation rules are in the policy that covers you.

The idea of subrogation is that it will offset the cost of insurance and keep costs from going up. So it’s easy to understand why Medicare and Medicaid use it, since they’re funded by taxpayer dollars. It’s harder to see a good reason (for parties other than the insurer) for private companies to use it, because subrogation-friendly judgments have not kept the cost of insurance from rising. But whatever the reason for it, subrogation is a fact of life. Medicare, Medicaid, or your private insurance may be legally entitled to a portion of your settlement.

Civil litigation attorneys can help

The good news is that you may not be stuck. There are legal remedies that could help. In upcoming articles on subrogation, we’ll get into more detail about the specifics of public vs. private insurance subrogation claims and how they can be mitigated.

But if you’re caught in a subrogation mess right now, the Ohio civil litigation attorneys at Cooper and Elliott are happy to talk to you about it. Give us a call. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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