Cooper & Elliott Blog

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 & 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 & 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 & 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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Mitigation of Damages: Money Doesn’t Heal in and of Itself

Posted on Tue, Jul 5, 2016 @ 6:24 PM

Our goal in every civil case is to get a judgment or settlement that will help compensate our clients for the harms and losses they’ve suffered, even if compensation cannot restore their lives to the condition they were in prior to the events of their case. But another—very important—part of our job is to counsel our clients on the importance of mitigating damages before, during and after their trial.

The process of mitigation serves two main purposes: First, it facilitates the healing process.  Second, it reflects positively on our client’s character, thus increasing their chances of obtaining a favorable verdict.

Mitigation of damages

Mitigation of damages is a legal principle under which a plaintiff who has suffered a loss or injury is expected to take reasonable steps to improve their situation or correct the harm. It ties into a value that our country has grown up with—we expect that if someone is knocked off the horse, they’ll get back up.  When plaintiffs neglect to take action or make no attempt to overcome their hardships, judges and jurors are likely to question the sincerity or the depth of the injury.

Think of a fender bender, for example. If you go to court for a car crash, and the other party is found to be responsible for the damage, the court still expects you to get the car fixed and prevent rust or further deterioration of condition. If you are injured, there is an expectation that you will seek medical attention or therapy so the injury doesn’t worsen. If you lose your job, you’re expected to look for a new one while you collect unemployment wages.

Practical reasons for mitigation

While mitigation of damages is a critical first step to the healing process for our clients, there are some practical legal benefits as well:

  • The defense can leverage a lack of mitigation attempts. In a civil court case, the defendant’s attorneys can actually argue that the plaintiff hasn’t done enough to mitigate damages on their own and leverage that point against them in court. If they are successful, a jury may allow the plaintiff a lower recovery.
  • Juries expect to see mitigation attempts. Judges and juries are more likely to empathize with a plaintiff who doesn’t adopt a victim mentality. Plaintiffs who sit idly by in the time that it takes for their case to go to trial aren’t likely to garner much favor from the jury.

As civil litigation attorneys, we have a responsibility to help our clients show proof of mitigation efforts, so a judge or jury doesn’t question our clients’ motivation to move on or heal. An effective way to do this is to have witnesses testify about specific actions or behaviors that exemplify our clients’ mitigation efforts.  These witnesses can be doctors, coworkers, family members—anyone who has seen our clients strive to overcome the hardships that resulted from the events of their case.

For example, we represented a woman who had broken her heel in a car accident.  Her son gave powerful testimony that told of how he returned home from college and witnessed his mother painstakingly carrying a laundry basket up a flight of stairs. She crawled up the steps, one step at a time, grimacing as she went, but was determined to get her laundry done. The jury was able to perceive her as a woman who was willing to overcome an obstacle and who was trying her best to be productive despite her debilitating injury.

Mitigating damages is critical to healing

We want our clients to thrive after a case. We want them to heal financially, emotionally and physically. And while a settlement is always a good start, the client must also make some mitigation efforts independent of the legal process in order for healing to occur.  We strive to counsel our clients to make decisions that will help minimize their losses.

  • Mitigation of damages can have positive effects. We represented a man whose wife was killed by a drunk driver. He put his settlement to good use—set some aside for his son’s college education and sought out grief counseling for his family. He took responsibility for pulling his life together and avoided a downward spiral. We’ve kept in touch over the years and are pleased to report that he and his son are doing well.
  • Failing to mitigate can have unfortunate consequences. We helped a client secure a judgment in a traumatizing defamation case. The events of the case were so terrible that they led him to suffer from post-traumatic stress disorder (PTSD). We encouraged him to see a psychiatrist, or seek the comfort of family members. He made some attempts, but we lost track of him after the case and he quit going to therapy. Tragically, his psychological state deteriorated and one day, about four years later, he took his life.

Money doesn’t heal in and of itself

Understandably, our clients sometimes feel the desire to seek legal revenge on those who have wronged them—it’s a perfectly human reaction to suffering a great deal of physical or emotional pain. However, the desire for revenge or retribution can obscure the ultimate goal, which is healing.

The take home point here is that money doesn’t heal in and of itself. Because of this, we encourage our clients to mitigate damages in a variety of ways—and ultimately, find their way to a new mental and physical normal. If that kind of help is what you need, 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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Takeaways from the Jury Box: An Attorney Serves Jury Duty

Posted on Tue, May 17, 2016 @ 5:47 PM

Dynamic disciplines like medicine or law require an ongoing pursuit of experience in order to meet the diverse challenges of their respective professions. Sometimes those experiences are best obtained by viewing processes from a different perspective. A member of our team recently had the opportunity to learn about trial law from a most unique—yet fundamental—perspective: the juror’s perspective.

A civil litigation attorney serves jury duty

As Ohio civil litigation attorneys, we seldom get to experience the courtroom from a jury box. Years ago, exemption rules kept lawyers and other professionals from serving jury duty in this area. Those exemptions have been lifted, but even now attorneys called to jury duty are rarely selected to serve, and those who are selected are usually not trial lawyers—more likely they’re transactional lawyers, tax attorneys, etc.

This is no surprise. After all, if you’re a plaintiff’s attorney called to jury duty, a civil defense attorney likely won’t select you due to concern that your sympathies lie with plaintiffs. If you’re a criminal defense attorney, a prosecuting attorney would similarly be concerned that you have a bias in favor of criminal defendants.

Yet recently, a member of our team, Chip Cooper, was selected to serve on the jury for a domestic violence case. It’s hard to say why he wasn’t struck from the jury, given his legal background. It could be that because Chip is a trial lawyer in civil, not criminal law—and this was a criminal case—the attorneys felt confident he could be a fair and impartial juror.

Regardless of the reasons why he was chosen, from a professional standpoint his experience in the jury box was a rare coup, as it gave him the unique advantage of seeing a trial through a juror’s eyes. From that perspective, he took away a number of insights we all can learn from. Below are some of his takeaways:

    1. Be professional and cautious. As he was walking to the courthouse, dressed informally for jury duty, Chip overheard two attorneys discussing sensitive aspects of their case—a witness they thought would do poorly, a judge whom they thought was unqualified.

As an attorney, it’s wise to show up for trial and assume that everyone around you could have some involvement with the case. What you say and how you present yourself—both inside and outside the courtroom—matters.

    1. Consider the proceedings from a juror’s perspective. Routines and processes that make sense to attorneys and judges might be unnecessary or even detrimental when trying to connect with jurors.

For example, Chip discovered that when jurors show up for orientation, they’re repeatedly thanked for their service and reminded of its importance. By the time they actually make it to trial, if the lawyers then repeat the same message, it almost sounds disingenuous. This repetition may also turn jurors off by underestimating their intelligence, their intuition, or their ability to quickly grasp the facts presented to them.

Rather than starting off on the wrong foot and potentially boring jurors, you might consider simply digging into the case.

When it comes to presenting evidence, there’s a fine line between using repetition to benefit your case and potentially harming it. You don’t want a salient fact to escape your jury’s attention, but you also don’t want to hit the same points over and over, and risk boring your jurors or, worse, insulting their intelligence. In this particular domestic violence case, the lawyers hit the same information again and again, to ensure the jurors understood the significance of certain evidence.

    1. Be sensitive to jurors’ needs. Because this case involved domestic violence, the attorneys needed to inquire about potential jurors’ experiences with domestic violence to ascertain their ability to impartially serve on the jury.

But how does one delve into such a sensitive and personal issue? In this case, the jury pool members were asked for a show of hands to indicate if they or their loved ones had had experiences dealing with domestic violence.

Think about that for a second. You’re asking people who are in an unfamiliar environment, surrounded by strangers, to raise their hands to announce that they’ve had experience with domestic violence. People aren’t likely to openly share intimate information in such an unfamiliar setting.

When dealing with such sensitive matters, we attorneys need to be prepared to accommodate jurors’ individual needs. For instance, in this particular case a written questionnaire could have been provided to prospective jurors before they were called to court. Then their experiences with domestic violence could be discussed discreetly with only the lawyers and judge.

Potential jurors would likely be more forthcoming with relevant information if they knew they could provide it in a private, respectful setting.

    1. Allow notes. Judges take different stances on whether or not they allow jurors to take notes during a trial—we think it’s best if they do allow note taking. Especially during a long case, or one that requires a lot of witnesses.

When jurors make a note of certain facts, it allows them to mentally move on and process the next piece of information presented to them. Moreover, if jurors are allowed to write down important points in the case, lawyers will be less motivated to repeat those facts again and again, allowing them to better connect with those jurors rather than risk insulting their intelligence.

Also, notes make for a more efficient process. In this domestic violence case notes were allowed. When it was time to deliberate, the jurors immediately pulled out their notes to list all the things they agreed upon or disputed.

    1. Juries function best as teams. As an Ohio civil litigation attorney, Chip couldn’t help but mentally compare his assessments of ideal jury candidates—based on his limited knowledge of the facts of the case—with those who ultimately were chosen.

In the decades we have been practicing law, we’ve followed every major theory in jury selection—everything from the Myers-Briggs Type Indicator system to the philosophy of “deselecting” jurors who would be bad for your case.

Our experiences in court have led to the conclusion that rather than focusing on jurors who will be good or not good for your case, it can be more productive to choose jurors who you think will work well together as a team. At first, the attorney will nominally be the leader of that team, providing guidance and information; later in deliberation, the jurors will take over and choose a foreman to lead the team and collectively reach a fair verdict.

Applying that strategy to the domestic violence case, Chip found that for the most part the people who were ultimately chosen for the jury got along fabulously as a team: They were dedicated to the task, paid close attention to the information presented to them, and shared thoughts that other people had not picked up on.

    1. Jury instructions shouldn’t be an afterthought. While it’s true that lawyers shouldn’t underestimate the intelligence of jurors, that doesn’t mean jurors can’t benefit from lawyers’ guidance, especially when it comes time to give the jury instructions for deliberation.

In the domestic violence case we’ve been discussing, neither the prosecutor nor the defense attorney discussed the jury instructions in any detail during their closing arguments—and that omission nearly affected the verdict.

During deliberation, although the jurors seemed to conclude that the defendant was innocent, their initial interpretation of some unclear wording in the jury instructions briefly led them to believe that they would have to vote guilty anyway. After a bit of discussion, the jury members were able to interpret and understand the instructions correctly, and voted unanimously to acquit the defendant.

It’s easy though to see how one small misinterpretation could have led to a vastly different outcome. It’s crucial, therefore, for attorneys to make a special effort to explain the instructions during closing arguments, when the information will be fresh in jurors’ minds.

A valuable opportunity

Being able to participate as a juror was a rare and valuable experience for Chip—and for Cooper & Elliott. Hopefully, more trial lawyers will be able to have that opportunity in the future, because the view from the jury box offers a rewarding learning opportunity for those looking to better connect with jurors. We’re grateful to be able to add what Chip learned to our bank of knowledge and experience so that we can ultimately use it to better serve our clients.

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

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Judgment Recovery Tools in the Absence of Insurance

Posted on Tue, May 10, 2016 @ 5:41 PM

We seek justice for our clients through a verdict or settlement that often results in a judgment—monetary compensation intended to help restore our clients to the condition they were in before being harmed. Judgments are frequently paid through insurance companies. But what if insurance isn’t available as a source of recovery?

Thankfully, other judgment recovery options are available.

Defendant actions that can affect a judgment recovery

When insurance doesn’t cover a judgment, the recovery process can go in a variety of different directions, depending on the defendant’s resources and willingness to pay:

  • The defendant has sufficient assets and voluntarily pays. This situation speaks for itself and is, understandably, the best-case outcome.
  • The defendant has sufficient assets but appeals the judgment. Here, the defendant doesn’t want to give up his assets while the case is on appeal, so instead he posts the full judgment amount with the court as a type of insurance. Defendants can pay the full amount themselves or, more typically, opt for an underwriter’s surety bond, which guarantees payment of the judgment in the event the judgment isn’t overturned. These bonds allow the defendant to put up the judgment amount for appeal without having to immediately pay out of pocket. From our clients’ point of view, surety bonds represent an excellent source of recovery.
  • The defendant has sufficient assets but doesn’t voluntarily pay or doesn’t post a bond on appeal. These are the most difficult situations for recovery. Sometimes they stem from the defendant’s assets not being easily liquidated in order to get a surety bond. For example, if a defendant has sufficient assets but they’re in the form of rental properties, the defendant may be reluctant to sell those properties to provide the collateral for their appeal.

Basic tools for judgment recovery

Regardless of the reason why the defendant isn’t paying, we have some basic tools at our disposal to ensure our clients ultimately receive the judgments accorded them.

  • Certificate of judgment. If the assets in question come in the form of real estate, an instrument we commonly rely on is something called a certificate of judgment. A certificate of judgment basically puts a lien on any real estate a defendant owns, which means that in the event they try to sell the property, a title search will reveal the plaintiff has a claim on it. The certificate of judgment would have to be paid, often with proceeds from the sale of the property, before the title could be cleared and the defendant could complete the transaction.
  • Wage garnishments. Here, the court issues a notice stating that every pay period the defendant’s employer must pay a certain amount of the defendant’s paycheck to the court. The plaintiff receives that money, and it’s applied to the judgment balance until the judgment is paid off.
  • Non-wage garnishments. These apply to property other than wages. The defendant receives a notice to deposit the property in question to the court, then the plaintiff liquidates the property and that value is applied to the judgment. For example, if a business owner doesn’t receive wages but keeps profits in a bank account, that bank account can be garnished, and the funds can be applied toward the judgment until it is paid off.
  • Writ of execution. In instances when the defendant’s resources are something other than money—and we know specifically what those assets are—a writ of execution can be issued. If, for example, the personal property is a boat, a sheriff’s deputy would receive a writ of execution that would instruct him or her to go to the specified location and seize the boat. The boat is then sold at auction and the proceeds are applied to the judgment.
  • Receivership. When the defendant is a business or has significant business assets, a form of recovery called receivership is often implemented. In a receivership, the court appoints a person to effectually manage the business affairs of the company or defendant. That person either sells or runs the company, distributing income to creditors from the sale or company operations.

For example, if the defendant owns rental properties, the court could put a receiver in place to manage those properties—collecting the rent, maintaining the grounds, etc.—and the rental income can be applied toward the judgment. The receiver could also sell the properties themselves to pay off the judgment.

Purposely avoiding judgment recovery

Sometimes defendants don’t voluntarily pay their judgments because their assets aren’t liquid. But just as often it’s because they’re attempting to avoid payment altogether. Determined defendants may go to great lengths to hide their assets, by giving them away or selling them at a low cost to trusted friends or family members. For example, after getting hit with a judgment, defendants might sell their boat or car the next day, just so it’s no longer attached to their name and can’t be collected from them.

As a result, we attorneys must track down any assets the defendant might have, then act quickly and aggressively to ensure they’re secured by the sheriff or paid to the court before the defendant has a chance to move them.

Fortunately, if a defendant has tried to move assets, we can take some remedial actions. We can identify a sale as a fraudulent transfer, go to court, and get a judgment against the recipient of the property, ordering them to return the property because the sale was made in an attempt to shield assets.

Bankruptcy

Another way defendants attempt to block collection efforts is to opt for bankruptcy, which initially freezes any ability to collect on a judgment. In these situations, plaintiffs must then assert their claim on their judgment through the bankruptcy process. 

During a bankruptcy, a court appoints a trustee to sort through the defendant’s assets and liabilities, then pay off those liabilities in an order of priority established by relevant bankruptcy codes. Typically, a defendant who files bankruptcy has meager assets and is unable to pay the judgment in full. 

When that happens, our challenge is then to avoid the defendant’s bankruptcy from discharging the plaintiff’s judgment, so we can continue to pursue the defendant for payment after the bankruptcy is completed. This can be difficult because in the overwhelming majority of cases, if the defendant declares bankruptcy, the end result is that all their debts are discharged, and they essentially emerge with a clean slate.

That said, there are certain judgments that are considered non-dischargeable, like those deriving from fraud, injury, or death due to DUI, or intentional acts of injury. Judgments are also not discharged if the defendant commits fraud on the bankruptcy court, hides assets from the trustee, or abuses the bankruptcy structure. 

In all of these instances, although recovery may not be obtainable from the bankruptcy process directly, we work to preserve our client’s ability to pursue their judgment in the future. That way, if a defendant filed for bankruptcy and then later, say, developed a successful business opportunity, we would still be able to pursue assets through garnishments, receiverships, and the like.

Making justice count

As many elements as possible—insurance, sources of income, assets and liabilities, types of assets, the underlying dispute of a case—must be taken into consideration before we even undergo a trial. In the long run, it’s not enough just to win cases—our aim is to help clients find justice and become whole again. Fortunately, even if insurance isn’t available as a means of judgment recovery, we can take a number of effective actions to ensure that justice is done.

The materials provided here are for informational purposes only and do not constitute legal advice. Please contact your attorney for advice with respect to a particular issue or problem. 

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

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