For Individuals

A Wrongful Death Illustrates the Importance of Caring for Our Independent Seniors

Posted on Mon, Dec 7, 2015 @ 5:28 PM

Societies have long wrestled with how to best care for senior citizens, but we are truly headed into uncharted territory as the Baby Boomer generation gets old. The largest generation in American history will also be the longest-lived—and they’re approaching their retirement years. For many, this may entail finding living arrangements that will provide varying degrees of assistance.

That’s the big picture, but of course it comprises millions upon millions of individual human lives. And when you filter those personal stories—such as the wrongful death case of Dorothy Kramer*—through that larger statistical prism, one thing becomes clear: We, as a society, are going to need to make some changes.

An inexplicable, avoidable loss

Dorothy Kramer enjoyed living independently. Her housing solution was similar to that chosen by many of today’s seniors: an independent living facility, where she lived alone in her own room, and could come and go as she pleased.

One of the advantages of this facility was its emergency services. In addition to a cord in her bathroom that she could pull in case of an emergency, Dorothy was given an alarm to wear around her neck or wrist. If she were in an emergency medical situation, Dorothy could push a button and emergency medical services (EMS) would respond.

One morning, around 5:00 a.m., Dorothy pressed her emergency medical button. About fifteen minutes later, EMS personnel responded—to the wrong address. Dorothy’s alarm had been programmed incorrectly to the address across the hallway. When EMS arrived, they found that the resident across the hall didn’t need help, they deemed the call a false alarm, and left without helping Dorothy (or even knowing someone still needed help).

Later that afternoon, one of Dorothy’s daughters received a call from the facility. Dorothy wasn’t answering her door and the staff couldn’t get into her locked room. Finally, the director was able to let them in. There, they found Dorothy, who had died sitting in her chair, clutching her alarm.

Pointing fingers

Obviously, this was a terrible situation which never should have happened. To make matters worse, nobody was willing to take responsibility for the egregious mistake.

Both the independent living facility and the alarm company blamed each other for the procedural failure that led to Dorothy’s wrongful death. As part of our ongoing investigation, we’re obtaining information from the independent living facility, the alarm company, and others in order to put together a complete picture of just where the breakdown occurred.

Aftermath of a wrongful death

As might be imagined, Dorothy’s loved ones—her two daughters and her grandchildren—were in shock. How could such a tragedy occur in spite of the supposed safety measures that were in place?

Dorothy’s death caused a lot of pain for her family. Especially for her daughters—Dorothy had always been their rock, their anchor. One daughter has even had to seek medical treatment to deal with the depression that resulted from her mother’s death.

We’re determined to obtain the justice Dorothy’s family deserves. Healing from such an inexcusable loss is never a simple matter, so we’re also dedicated to providing the emotional support they need to weather these difficult times. Whether they need to talk about what they’re going through, or what Dorothy meant to them—we’re here to listen. If they simply need advice, we do our best to provide that as well.

Lessons for an aging population

Besides being frustrating and tragic, we think cases like these should serve as a wake-up call for those of us who are blessed enough to still have one or both parents in our lives.

The reality is we haven’t yet had to face the challenges involved with accommodating such a large group of aging seniors. With all of our advances in medicine, nutrition, and preventative health care, people are staying healthy and independent much longer. Many senior citizens own their own home and want to stay there as long as possible.

As Ohio wrongful death attorneys, we’ve seen numerous cases involving elderly victims, whether it involved medical malpractice, nursing home neglect, or other forms of harm, like conning a senior citizen out of her home.

We need to look out for our elderly loved ones and be vigilant on their behalf. In today’s specialized world, we’ve been conditioned to defer to the “experts,” but it’s important to remember that, when it comes to your parents, you’re likely the most informed. Ask hard, smart questions to ensure the people you’re sharing caregiving duties with are doing their jobs correctly. This holds true whether your parents are living at home, in an independent living facility, or in an assisted living community.

There’s another perspective to this as well: In the future, we will have a responsibility to our children and loved ones to allow them to care for us in our senior years. This could entail everything from recognizing and accepting when we’d be better off moving to an assisted living facility, to willingly giving up the keys to our car because we can no longer drive safely.

In terms of the nearer future, plan ahead. Make sure you have a will. Establish a health care power of attorney. Communicate with your loved ones what kind of living arrangement you want in your later years. These can be tough discussions, but avoiding them now can lead to much worse circumstances down the road.

We’re all caregivers

Growing old is one of those paradoxes of the human condition. Most of us don’t want to grow old, yet at the same time we usually want to live as long as possible—provided we’re cared for.

Dorothy Kramer’s daughters thought their mom was being well cared for, only to have their trust senselessly betrayed. Our primary goal at this point is to secure justice for her family and help them find a way to start healing. We’ll keep you updated on how they’re doing.

In the meantime, this story should serve as a reminder to us all to be watchful. We all have loved ones who are getting older, and some of us are getting older ourselves. While paid caregivers provide an admirable and invaluable service, they’re not infallible. We should all consider ourselves caregivers, and be diligent in that role. It’s our loved ones’ well-being on the line, after all—is there really too much we can do for them?

*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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Ohio Health Victimizes a Pedestrian Injured in a Car Accident

Posted on Mon, Nov 30, 2015 @ 9:02 PM

The car accident was bad enough, but what happened to the victim afterward was even worse. In this case, an Ohio hospital victimized its own patient. As Ohio personal injury attorneys, we were determined to make it right.

The pedestrian car accident

Freddie* was 30 years old, mentally disabled, and lived with his mother. Despite his limitations Freddie was a very productive young man. He had a job at a neighborhood restaurant and he went to work every day just like anyone else.

One day, Freddie was walking back to work after a break when a careless driver made a rolling right turn through the crosswalk Freddie was using, and hit him square on. It was a devastating accident. Freddie sustained a serious head injury, and his shoulder was hurt badly enough to require a replacement. Worse yet, Freddie lost his job because he was unable to work after the accident. In addition to his long and arduous recovery, the accident left Freddie with severe post-traumatic stress disorder. He didn’t want to leave his mother’s house, much less get in a car or cross the street—his life was totally transformed by the tragedy.

According to Ohio law, if a driver strikes a pedestrian who’s outside of a crosswalk, the driver can’t be held liable for the accident. That’s the position the driver and her insurance company took. We countered their position by hiring an accident reconstruction expert. Speed analysis measurement and eyewitness testimony were used to establish that Freddie was indeed in the crosswalk when he was struck by the driver’s car. By proving the driver’s negligence we were able to secure a settlement that would help Freddie on his road to recovery.

Establishing the driver’s liability was great news for Freddie, but it certainly wasn’t the last obstacle that he would have to overcome in regards to this accident.

Ohio Health preys on a vulnerable man

As a patient of Ohio Health, Freddie’s medical bills totaled over $110,000. If he’d had insurance, or if he’d been covered by Medicare or Medicaid, the insurer would have offered to pay a certain percentage of the bill, the hospital would have accepted it, and that would have been the end of the story. It’s a common practice in the healthcare business—hospitals bill one amount, but they take whatever the insurers are willing to pay. Because hospitals know they’ll only get a fraction of the amount billed, they have an incentive to inflate the bills.

Ohio non-profit hospitals have a state-required program called H-CAP, which is a charitable program that covers medical bills for those in our society who are uninsured or impoverished. The day after the accident, someone from Ohio Health’s billing office went to Freddie’s room with a form to determine if he was eligible for H-CAP. This person asked Freddy—who was badly injured, traumatized, and on pain medication—how much money he made. On the form, that person recorded that Freddie’s income was $18,000 a year, which made him ineligible for H-CAP.

But Freddie never made $18,000 a year in his life. Now maybe he said $8,000 and somebody wrote it down as $18,000. Or maybe he was on pain medication and didn’t say anything. (They never even tried to ask his mother, who was present and who certainly would have been able to provide that information.) Denying Freddie H-CAP assistance would be a big win for the hospital. H-CAP eligibility would eliminate his debt entirely, but if Freddie wasn’t eligible, the hospital would be in line for a big payday from the insurance company. So the hospital was financially motivated to keep Freddie from receiving H-CAP benefits, even though he was precisely the type of candidate the program was designed to benefit.

Freddie’s employer didn’t provide him with health insurance. So here’s a man with no private insurance and who, according to Ohio Health, is ineligible for H-CAP. It gets worse: Rather than trying to collect the amount that Ohio Health would have accepted if Freddie had been insured (something in the range of $40,000) Ohio Health demanded the whole $110,000. And it didn’t just try to collect, Ohio Health actually sued Freddie for everything—his medical bills, his therapy, for every last dime of the inflated bill.

Ohio Health’s financial greed led them to prey on an impoverished and mentally disabled young man in the midst of an incredible hardship, and it’s despicable.

Helping Freddie land on his feet

It was our goal to keep Freddie from having to pay the overinflated $110,000, which would have amounted to a significant portion of his settlement. He’d been through enough at that point and we believed his settlement should have been used to help him get back on his feet, not compensate the hospital at exorbitant rates. Fortunately, we were able to negotiate a much more realistic bill, and Freddie was able to retain the majority of his settlement.

Sometimes good people get taken advantage of, and we’re just glad to be able to our part in correcting these situations when we can. It hasn’t been easy for Freddie or his mother, who had to take a lot of time off of work to take care of him. Freddie has a lot to live for and we’re eager to see him recover physically, recover from his post traumatic stress disorder, and get back into the world.

*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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The Background Check That Failed: Ohio Personal Injury Attorneys Prove Employer Negligence

Posted on Tue, Nov 17, 2015 @ 1:51 PM

The evidence was clear: Randall Smith* was a dangerous man. At the time of this case, he was in his 50s and had a criminal record that stretched back into his 20s—it was dotted with violent crimes in several states. He had most recently served a nine year sentence in an Ohio prison for kidnapping and robbery charges. The facts of that crime: After being fired from his job at a convenience store, he returned, and took his former coworkers hostage at knifepoint because he blamed them for his termination.

A few years later, Smith was working for a company when he made some sexually harassing comments to his coworker, Becky Diel*. Becky went to her supervisor and made a complaint about the incident. Smith was fired.

Unfortunately, that wasn’t the last Becky heard of Randall Smith. A couple weeks after his firing, Smith showed up at Becky’s home, forced his way in, tied her up, and sexually assaulted her. After the violent assault, he left her bound, injured, and alone. Thankfully, she was able to free herself and call 9-1-1.

Smith found himself back in prison, a place he will be for a very long time, because his record proves he’s a habitual violent offender. Becky, however, was left to suffer from the tragic event.

Ignored background check leads to personal injury

Becky came to us when she decided to seek out a personal injury attorney to help her recover from the assault. Her injuries were substantial. She had been both physically and sexually assaulted—two incredibly traumatizing events. We wanted to help Becky get justice for the wrongs that Smith had committed against her, and help her get back to a normal life. As you might imagine, Smith did not have any assets to pursue that might help his victim, so we needed a different approach.

We believed it was possible to prove negligence on the part of the employer, for hiring someone with such a violent history (especially toward former coworkers). Smith had disclosed directly on his employment application that he had committed a felony. Since the employer had hired him despite his felony, we wanted to know what their process was for using that information—but when asked, the employer didn’t have an answer.

We began by trying to uncover the employer’s policy for using background checks. As part of the application process, the employer required that the applicant “pass” a criminal background check—which would indicate that there were established standards for what would constitute passing and failing. But the further we investigated, the more we discovered that no one had an answer for what it meant to fail a background check. The human resources employees who signed off on background checks simply didn’t have firm guidelines to follow on how to evaluate different types of criminal history. We spoke with former managers who told us when they raised concerns about certain types of offenders working in specific job functions, the company informed them that the questions they could ask the applicant’s about their criminal history were limited.

In the state of Ohio, it’s possible to get a criminal history report from the investigation division of the state attorney general’s office.

In Smith’s case, his whole history was right there on the face of the report—but nobody at the company did anything to learn more about his offenses in Ohio, or any other state.

Proving employer negligence

The employer’s defense was twofold: First, it’s wrong to automatically disqualify felons from hiring. The employer argued that Randall Smith served nine years and paid his debt, and they were not automatically negligent just because they’d hired him.

The employer’s second defense—one that presented a bigger challenge for us—was that Smith was a former employee when the crime was committed, and the assault happened off the work site. Based on those facts, the company claimed there was no way they could have prevented the attack.

Our argument came down to this: It’s the duty of an employer to provide a safe workplace and a safe environment. But, exactly how far does that duty extend, and what does the employer have to do to satisfy it? We dug a little deeper into some legal principles that ask the simple question: Is the harm foreseeable? And ultimately, based on Smith’s extensive criminal background, we were able to prove that it was.

This case was particularly sensitive in that Becky did not want to be the center of attention. We did our best to be sensitive to her needs, and made sure that we completed as much work as possible without having to involve her. She had to give a deposition, but beyond that was involved only as much as she wanted to be. At the end of the case, after we had uncovered substantial evidence that we believed would prove employer negligence, Becky received a settlement and she was able to begin putting the assault behind her.

If feels good to be able to make a difference in people’s lives. In addition to helping Becky recover, we hope the outcome of this case will prevent similar crimes from happening in the future. Helping our clients become whole again after tragic events is the goal we aim to achieve with every case we take.

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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Immigration Malpractice Threatens to Ruin American Ideals for Hard-Working Man

Posted on Tue, Nov 10, 2015 @ 1:31 PM

People around the world seek a new life in the United States, pursuing things we often take for granted, like gainful employment and access to competent legal representation. After both of those things were called into question following a man’s mishandled visa renewal, he sought the help of Cooper & Elliott.

Negligence threatens a man and his family

When Sandeep Chaudhry* came to us, he was desperate. An IT professional working legally in the U.S. on an H1B visa, he had reason to believe the lawyer he’d entrusted with his immigration matters had been negligent with his paperwork—leaving him and his family at risk of deportation.

H1B visas have an expiration date and must be renewed in order to maintain legal working status in the U.S. The lawyer who’d been hired by Sandeep’s employer specifically to help employees deal with immigration matters was taking a long time to produce documents verifying the extension. Sandeep diligently delivered whatever paperwork his lawyer requested, and the lawyer continually assured him that everything was in order.

After time went on without clear proof of the extension, Sandeep became suspicious. Even though his lawyer was telling him everything was ok, Sandeep wanted written proof. The lawyer still couldn’t come up with a document. Sandeep turned to his employer, requesting verification from HR.

In the HR files was a document denying Sandeep’s extension because his paperwork had been filed too late.

This was crushing news. Immigration law states that if you’ve been in the U.S. more than a year past your visa’s expiration date, you could face deportation and be barred from coming back to the U.S. for at least 10 years.

What’s more, his wife’s immigration status was linked to his. If he left, she and their two kids would have to leave too.

Sandeep knew he needed help. He first went to another attorney for assistance. His situation only worsened as that attorney sat on his case for almost six months, finally telling him there wasn’t much that could be done. Amazingly, given his previous experiences with lawyers, Sandeep came to us after receiving a referral.

We were determined to do better for him.

The consequences of immigration malpractice

As we began digging into Sandeep’s case, it became obvious that the immigration lawyer had committed malpractice on multiple fronts: He hadn’t filed paperwork correctly, he hadn’t filed it on time, and he hadn’t kept Sandeep, his client, informed of ongoing developments.

What was most devastating, was that he hadn’t told Sandeep that the extension had been denied, and had instead been telling him that everything was fine.

We prepared to sue the lawyer for legal malpractice. And since Sandeep’s employer had represented itself as the facilitator of his immigration matters and had knowledge of the visa denial (it had been in the firm’s files for two years) but failed to inform Sandeep, we sued the company as well.

Yet as obvious as the malpractice may have appeared, actually obtaining justice was tricky. For one thing, the immigration lawyer and the employer were pointing fingers at each other, claiming that the other was responsible for Sandeep’s predicament.

The immigration malpractice had produced a number of life-altering consequences that Sandeep and his family had to face. First, Sandeep and his wife couldn’t leave the U.S. for fear of not being allowed back in. There was an ever-present worry that their family could potentially be split apart, with Sandeep and his wife being deported to India while their children, who weren’t citizens of India, had to remain in the U.S.

If Sandeep was forced to move back to India, his job prospects would be severely limited, since his line of work required him to travel to the U.S. By the time Sandeep came to us, he and his wife (who both had master’s degrees) could not work because the botched visa extension left them in a state of questionable legal working status.

As a result of their unemployment, they were rapidly running out of money. At one point Sandeep was limiting himself to one meal a day to ensure his children had enough to eat. Even Sandeep’s health was suffering—as the case continued, we noticed he looked increasingly haggard and thin. The entire family was enduring a great deal of stress. Between the helplessness of dealing with the immigration problems and the anxiety that comes with unemployment and financial troubles, they all were suffering.

Immigration reinstatement vs. damages

Just what would constitute justice for Sandeep in this situation? Sandeep’s highest priority was ensuring that he could legally stay in the U.S.—but according to immigration law experts, that possibility wasn’t promising. At that point, we knew we had to proceed with a lawsuit.

As is often the case with people who tend to mess things up, the immigration lawyer was essentially “judgment proof”—he and his law firm had very little money to pursue for damages. At that point, we turned our attention to the company.

Besides, the company was equally responsible for Sandeep’s situation. Our investigation revealed damning internal emails within the company’s records indicating that it had known Sandeep’s paperwork had been mishandled, yet it never tried to fix the problems or tell Sandeep of the issue.

Delivering justice

Our avenue of pursuit now centered on seeking damages; we went the extra mile for Sandeep. Knowing that his trust had already been broken repeatedly—by two lawyers, as well as his former employer—we made sure to update him with the progress of his case multiple times each week.

When we sat down with the company’s lawyers to hammer out a settlement, we insisted that Sandeep be properly compensated for the negligence that had caused such upheaval for him, his family, and their future.

After a 12-hour mediation session, the company’s attorneys still hadn’t yielded the results Sandeep deserved, so we prepared to walk out. Fortunately, the mediator brought us back and said the defense was finally willing to make an offer worthy of consideration.  Sandeep ultimately accepted the settlement.

Mixed results, mixed feelings

The resolution of this case was bittersweet for us. On the one hand, the settlement would help end the privations and immediate money worries Sandeep and his family were experiencing. It would also take some pressure off him and his wife as they sought new employment. At the very least, they wouldn’t be forced to immediately leave the U.S. for financial reasons.

Unfortunately, civil litigation for money damages against the attorney and the company didn’t resolve his immigration proceedings. In that sense, we wish we could have helped more.

There was at least one glimmer of hope, though: Our immigration expert said that the resolution of the lawsuit might help the chances for Sandeep’s visa extension. As part of the settlement, we had insisted that the first immigration lawyer admit in writing that the faulty paperwork had been his mistake, and not Sandeep’s. Our hope is that Sandeep and his family will be able to live in the U.S., recover from their hardship, and thrive.

A true privilege

When people choose to become a lawyer, their reasons are often justice-related: a desire to do good in the world, make a positive change, or help people right wrongs.

The reality is, in practice they often wind up working on cases far removed from those ideals.

It’s not an understatement, then, to say that working on a case like Sandeep’s was an extreme privilege for us as attorneys. Here was this selfless, generous, genuinely good man—honestly, one of the nicest clients we’ve had the pleasure of working with—who toiled and sacrificed to come to the U.S. because he loved everything it represented, only to have the door shut in his face through no fault of his own.

By all accounts, Sandeep should have been bitter and disillusioned. Yet he remained positive, hopeful, and grateful. Like many of our clients, he’s a model for all of us, and we’re honored to have been able 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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20+20: A Look at How Advances in Video Technology Affect Trials

Posted on Wed, Nov 4, 2015 @ 7:59 PM

2020BadgeAs we continue to celebrate our firm’s 20 years of being in practice and forecast the next 20 years, we like to reflect on the changes we’ve seen in the legal system, and how those changes will impact the future. An area of change that we find quite interesting is the court system’s adaptation of new technology. One in particular, video communication technology, has been used in legal settings for years, but the onset of streaming media may forever change the way attorneys, juries, and witnesses interact in the courtroom.

Using video testimony: then and now

Advances in technology are changing the way witness testimony is gathered and heard by juries. Twenty years ago, if a witness couldn’t physically attend a trial, attorneys would have to travel to their location to capture a written transcript of their testimony. In court, someone would physically read the questions and answers back to the jury. The process lacked the value of an in-person question and answer discussion. If an out-of-state witness couldn’t or wouldn’t come to trial (in Ohio, the state court’s power to compel a witness to come to trial only extends to the boundaries of the state), this was the only way to capture their testimony. Overall, it was an artificial and boring process.

Somewhere in the course of our practice we began videotaping witness testimony. Initially, it was very expensive, and required clunky camcorders and specialized videographers. The testimony would be recorded, and the video tape would later be played back to the jury. It often felt like watching a very dull movie. If the video testimony was played after lunch, the jury would often become tired and lose focus, and sometimes even fall asleep. Sometimes the judge would even call a short recess to get the jurors to walk around and wake up. This method made it difficult to determine if the testimony was actually being heard and understood by the jury.

Live streaming: a welcome, and useful, alternative

Over the last few years, video technology has evolved, and now live streaming testimony is available in the courtroom. The onset of video conferencing with providers like Skype and FaceTime has become a great way to capture testimony in real time, especially if the person testifying is in another country or a great distance away.

Skype is a valuable legal tool because it’s the next best thing to actually looking the witness in the eye as they deliver their testimony. It allows for a kind of human interaction that is almost as compelling as testimony given live in the courtroom. Judges have to approve the video streaming process, of course, but many of them have embraced this technology as an alternative to traditional written or recorded testimony.

There are multiple benefits of being able to interact in real time via live video streaming; first of which is the ability to cross-examine the witness—allowing the jury a greater depth of perspective into the details of the case. Additionally, streaming allows the judge to make rulings on the spot about the validity of a question, or even caution a witness that is trying to dodge a question—two key factors that are lost with remote testimony.

From a juror’s standpoint, the younger generations will be accustomed to and have experience with this technology already, so this change won’t require much of an adjustment for them. Older jurors will likely welcome the change of pace and will no longer be nodding off like they did in the days of transcripts and recorded video testimony.

Practical concerns

Benefits aside, there is just no substitute for the live experience. When testimony is given live and in-person, we can pick up on minute shifts that signal whether the witness is being truthful. In person there are subtle body language hints and almost imperceptible clues that provide more insight into what a witness may actually be thinking. These subtleties can go undetected in video communication.

Also, there is still a question as to what might be happening off camera—it’s possible that someone else in the room may be influencing the witness and their testimony. There’s no real way to control the outside influences that might be happening in a location that isn’t a courtroom.

Another major concern is the aura of the courtroom experience and the effect it has on the witness—the pressure of sitting in the witness chair with jurors and the judge watching—will be lost. On the flip side, the witness and the quality of their testimony might benefit from a lack of anxiety generated by the traditional courtroom trial experience.

Live video streaming simply doesn’t remedy all of the complications brought on by long distance testimony. There are significant challenges concerning the display of exhibits. How do you display a piece of evidence or a chart so the remote witness and the in-person jury can see it at the same time? Another concern is that critical elements like size and distance are not easily communicated in video.

Overall, we think Skype is preferable to reading someone’s testimony transcript or putting a video on a disc and pressing play. If taken to the extreme though, with all parties participating remotely, the integrity of the trial process could potentially suffer. It would completely change the traditional court system as we know it.

Embracing advances with caution

There are some logistical challenges, but it’s likely that video conferencing will be used in the courtroom more and more frequently in the future. That said, we believe erring on the side of caution with any new technology is wise. Assuming the judge agrees to it, Skype could be incredibly useful when you have a remote witness who is vital to the case, but cannot travel. But we’d hate to see Skype overused in the courtroom, becoming a convenience and not a necessity. It will be very interesting to see how this technology continues to impact us in the future.

 

*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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Learning From the Loss of a Member of the Cooper & Elliott Family

Posted on Tue, Oct 27, 2015 @ 12:26 PM

Our blog contains many tales of the cases we handle. In every one, we give our perspective as the attorneys who handled the case. And in each one the names are changed so we can protect our clients from the painful reality of their experiences.

This time will be different.

My name is Rex Elliott. I am a founding attorney at Cooper & Elliott, and I’d like to tell you the story of the crash that began the series of events leading to my father’s death. Obviously, this is a painful time and a hard story to tell, but I feel there are important lessons that everyone can learn from our experience.

My dad was 78 years old, in good health, lived on his own in our childhood home, was self sufficient, drove his own car, went to meetings and worked part time in his insurance business.  One late Saturday afternoon in May, he was running errands when he turned left out of a gas station and a reckless driver smashed into the driver’s door of his car at a high rate of speed.

My dad’s injuries were severe and he broke every bone up the left side of his body; including all of his ribs, his hip, his leg in two places and four vertebrae.  He suffered from severely punctured lungs due to his broken ribs, a lacerated spleen and substantial internal bleeding. When I arrived at the hospital, there wasn’t a lot of optimism.

The accident report

Before he went into surgery that day, I asked my dad what happened. Through his pain, he said he looked both ways and waited for a car that was coming from one direction. There was nobody coming from the other direction, he thought, so he pulled out, and was T-boned by a car he never saw. That was the last chance I had to talk to him for a month, because after the surgery he was on a ventilator and in a coma.

I read the police report the following Monday. The officer had talked only to the other driver, who said that she was driving the speed limit (35 MPH), and my dad simply turned in front of her.

That didn’t match what my dad had said.

Over the next month, while we waited for him to wake up, the circumstances nagged at me. The officer hadn’t tried to speak to my dad (or to me), and hadn’t interviewed any eyewitnesses, even though the accident occurred on a busy corner at 4:30 p.m. on a Saturday. There must have been people who saw it happen. Instead, the police report simply concluded that the accident was my dad’s fault.

On the weekend of the auto accident, we had no information about the condition of the other driver—if she was hurt, whether she’d been taken to the hospital, nothing. On Monday, shortly after the police report came out, we learned she hadn’t been hospitalized or treated for anything—but she was claiming soft-tissue injuries, whiplash, and she had already retained an attorney based on the accident report alleging that the crash was my dad’s fault.

But I believed, based on my dad’s lucid description of the crash that he might not be at fault at all.  Thank God I followed my instincts.

Reconstructing the accident

To find out what really happened, we set out to reconstruct the crash, using surveillance videos from the gas station and from the business next door. We learned that the other driver had approached the intersection at a high rate of speed, passing cars on the left, and she didn’t even brake before she hit my dad’s car. We surmised that she had to have been distracted by something, or not even looking, when she crashed into him. After reviewing the video, the police department estimated her speed at 53 to 56 mph, well over the speed limit, and much faster than the 35 mph limit mentioned in the police report (the department has a lot of experience with this area since it has been ranked as the most dangerous intersection in Columbus).

The bottom line is that the crash happened precisely as my father said it had, as he was fighting for his life in the emergency room of Grant Hospital.  He waited for the eastbound car he could see and then made his turn, only to be hit by the westbound car he couldn’t see, because it came upon him out of nowhere, at an unsafe and extraordinarily reckless rate of speed.

The accident’s lessons

Although my dad’s auto accident happened relatively recently, we have already established liability on the part of the other driver. One big lesson that was reinforced for me as an attorney is a simple one: Listen to people. When my dad first started telling me about the accident in the emergency room, even I thought he might not have it entirely straight, given his age and the serious injuries he had suffered. But, I was wrong—his description of the events of that day was extremely accurate. When a client describes a situation, no matter how unlikely their version of events might seem, it’s our job to listen to them and take their statement at face value as we investigate what the facts will establish.

Another big lesson: Don’t automatically assume a police report is accurate. In my dad’s case, there were no eyewitness interviews and no attempt to look at video evidence. The report was grossly inaccurate. We don’t necessarily blame the officer—it was a busy intersection, and his focus was on clearing the scene. He didn’t know the full extent of my dad’s injuries either. But the fact remains that if we hadn’t believed what my dad said in the emergency room, the official record of what happened would have been flat-out wrong.

Sadly, a few months after the accident, my dad passed away. This doesn’t change the lessons that have been reinforced by the circumstances of the accident.  And it doesn’t change the way I, and all of our attorneys, approach each case—with a sincere sense of empathy.  What has changed is that I will no longer have to try to understand what is in the hearts and minds of our clients.  The simple fact is I now know exactly how it feels to lose a loved one due to the careless conduct of another.

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

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10,000 Ohioans Recoup Settlement Funds from Class Action Lawsuit Against Transunion Credit Bureau

Posted on Tue, Oct 20, 2015 @ 11:56 AM

There are three main credit agencies in the United States. One of them is TransUnion. Nearly every American adult has their credit information recorded and tracked by TransUnion. What happens when the agency you trust to protect your credit rating begins to share your confidential information with other companies—for a price? It’s not something we like to think would happen, but it did. And that’s just the tip of the iceberg.

Major credit-reporting agency breaks consumers’ trust

TransUnion is a big name many Americans may recognize. It is one of three huge credit-reporting agencies in the United States. If you’ve applied for a loan to buy a home or car, chances are your credit rating has been accessed via TransUnion.

When the news broke that TransUnion had violated the federal Fair Credit Reporting Act by selling lists of credit information of hard-working consumers nationwide to marketers, a class action lawsuit was filed. TransUnion’s behavior had potentially affected two hundred million Americans across the country. TransUnion settled the lawsuit, and agreed to offer free credit reporting for one year and other benefits. Because of the difficulty involved in notifying 200 million Americans about the opportunity to register online for settlement benefits, TransUnion also created a $75 million settlement fund that could be used to pay consumers who didn’t learn about the settlement and therefore didn’t register for settlement benefits in time. If a consumer learned about the settlement after the online registration period expired but within two years after the settlement, he or she could lodge a “post-settlement” claim against the $75 million fund.  Sounds fair, right?

Unfortunately, the class action settlement did not require TransUnion to give notice to every affected consumer. The consumers who were supposed to receive benefits, including money from the settlement fund, had virtually no way of knowing the benefits even existed.

Also, even if some consumers learned about the settlement within the two-year “post settlement period,” the terms of the class action settlement made it difficult for them to make a claim. Under the Fair Credit Reporting Act, each consumer’s claim against TransUnion would likely be limited to somewhere between $100 and $1000, and the class action settlement said that consumers could not join together and pursue their “post-settlement” claims. Where would an individual consumer be able to find a lawyer willing to take on their claim, when the claim would be worth at most $1000?

Clearly, it was time for us to get involved on behalf of Ohioans.

Recovering cash for 10,553 Ohioans

We knew we wanted to take this on, but it presented some serious challenges. The settlement language stated we couldn’t file a claim on behalf of more than one person at a time. We had to figure out a way to let people know they had a right to make a claim against the $75 million settlement fund, but we also had to be ready to represent each person individually against TransUnion.

This was in late 2009, and people were hurting from the recession that was in full swing. We knew we wanted to focus on a targeted population in Ohio, and after a great deal of thought, we decided to reach out to the unions in the northern part of the state. We let union leaders know about the TransUnion class action settlement, and when they asked if we would be willing to represent their members we agreed to work hand-in-hand with them to notify individual union members and their families of their potential claims. We hired programmers to build a database of information about our clients—specifically, 10,553 Ohioans that needed in the worst possible way any money we could obtain for them from the settlement fund.

Ohio business attorneys working hard for Ohio families

This case resulted in a tremendous amount of work—but it turned out to be unbelievably satisfying for us. Logistically, there was a lot to be organized. We reached out to tens of thousands of union members, and ended up representing 10,553 individual Ohioans who were suffering from the recession.

The case required numerous trips to Chicago where we went head to head with TransUnion’s attorneys. We prepared and submitted 10,553 separate claims, and we made clear to TransUnion that we were prepared to litigate each and every claim to the very end. We ended up in a stare down with TransUnion, and in the end, TransUnion blinked.

Putting the settlement fund to good use

In the end, TransUnion agreed to pay our clients $300 each. It doesn’t sound like much, but the extra money really meant a lot to them during that tough economic period.

Yes, it was a lot of work for our firm. But you know what? We still remember all the amazing cards, letters and calls we got from our clients, saying how grateful they were for the unexpected money. We still share these stories because it illustrates exactly why we do this work. We helped a population that was struggling, and then went toe-to-toe with one of the country’s largest credit reporting services—a company that was hiding from its responsibility.

But even more satisfying than TransUnion crying, “Uncle,” were those cards, letters and phone calls from Ohioans who were so grateful for extra cash they wouldn’t have even known they were entitled to.

That’s why we do this work.

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

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

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Ohio Malpractice Attorneys Hold Hospital Accountable for Wrongful Death

Posted on Tue, Oct 6, 2015 @ 12:37 PM

A “DNR,” or do not resuscitate order, is an advance directive used by hospitals to signify a patient’s desire to pass away without lifesaving intervention in the event that their heart stops or they stop breathing. These are typically used by patients who suffer from a terminal illness or other serious medical condition. It is an important instrument that allows an individual to instruct doctors on precisely how to handle care at the end of his or her life.

Imagine if someone mistakenly assumed you had a DNR order. This is one such case. A 72-year old woman was allowed to pass away because the nurse on duty mistakenly thought she had a DNR order. When her family learned that she lost her life due to a clerical error, they were devastated. That’s when they decided to seek out experienced Ohio malpractice attorneys, and gave us a call.

A terrible mistake results in a wrongful death

Columbus native Rita Martin* had moderate cardiovascular disease when she presented with heart attack symptoms at the ER of a large local hospital. Heart disease ran in Rita’s family, but her siblings had all lived to almost 90 with pacemakers. So her symptoms didn’t come as a total surprise to her family.

Initially, Rita responded well to treatment and was due to be released. While she was recovering in a step-down unit, a second heart attack struck. Tragically, the nurse on duty mistakenly believed Rita had a DNR order on file, and she allowed her to pass away without intervention.

Rita’s devastated family approached us for help with this wrongful death case. They wanted us to help hold the hospital accountable for the egregious mistake that cost them their beloved wife and mother.  As experienced Ohio malpractice attorneys, we knew we had a clear-cut malpractice argument tied to the mistaken DNR order.

The case proved to be slightly more difficult than we thought, however, when the hospital went on the defensive. Though they did not deny the nurse’s mistake, they claimed that Rita’s heart attack was so massive, she wouldn’t have survived even if they had administered lifesaving treatment.

The value of expert opinions

We set out to find the best and most experienced cardiology experts to review the medical details and help us discredit the hospital’s defense. We can’t stress strongly enough the value these clinical experts brought to this case. Their findings indicated that hospital intervention likely would have saved Rita’s life.

Our careful argument strategy combined with the expert’s findings allowed us to achieve a favorable ruling and settlement that would help the Martins maintain a good quality of life in Rita’s absence.

It’s a good thing, too, because the Martins certainly could use the help: both Rita’s husband and one of her children had physical disabilities. In life, Rita played the role of a caretaker for her family. When she passed away, they really struggled to hold things together. They couldn’t afford the skilled nursing needed to replace the care Rita had provided. She was the glue that held the family together. We were determined to get the Martins the financial resources they needed to take care of themselves after Rita’s untimely death.

Working for a cause

It’s a frightening scenario: The caregivers you trust make an error so critical that it costs you your life. We wanted to do our part to help stop that from happening again to someone else.

For over a year we fought to make things right for the Martins, and during that time we became close with them. A key component of their mission in working with us was to ensure that no one else would fall victim to a similar mistake. Their hope was that the results of this case would force the hospital to improve its policies and procedures so as to protect everyone who walked through their doors.

A favorable court decision meant a lot to our team because we firmly believe that human beings have a right, especially after climbing the difficult hill into their 70s, to have their advance directives honored to the letter. In this wrongful death case, the nursing team allowed Rita’s life to end through negligence and carelessness.

As a result of our success with this case, the Martins were able to find meaning in Rita’s passing with the hope that her death had not been in vain—and would help improve hospital procedures and policies for future patients. The financial outcome made a concrete difference to this family as well.

We took on the case to honor Rita, and ultimately to help take care of her family when she couldn’t be there. It was a difficult case, but we’d take it on again in a heartbeat because it was the right thing to do.

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

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

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Cooper & Elliott 20/20: The Changing Landscape of Legal Research

Posted on Tue, Sep 29, 2015 @ 12:30 PM

2020BadgeAs we celebrate our firm’s 20 years in the legal profession and forecast the next 20 years, we want to highlight legal research—the cornerstone of building a solid case for a client.

Over the past two decades, legal research has gone from books to digital downloads, law libraries to computers and tablets. This is mostly a good thing for our profession. Attorneys now have much greater access to relevant law, such as court decisions. But for some attorneys, it also creates a temptation to cut corners and a danger of missing out on key information vital to a client’s case.

We take research very seriously here at Cooper & Elliott, and we feel it’s important to take a look backwards, to ensure we’re headed in the right direction.

The nineties: a noteworthy step forward

In 1995, Beanie Babies were the rage, millions were glued to their TV sets for the O.J. Simpson verdict, and news outlets around the world were heralding the futuristic technology of the World Wide Web.

For attorneys digging into research for a case, there were a couple of available options:

  • Schedule a trip to the local law library (during business hours, of course), pore over countless hardbound volumes of court decisions and history, and follow each new informational nugget to the next step of the process in building the case. If you compare that to Googling today, imagine each click of a link being another book you had to pull from the library shelf.
  • Or, take advantage of the new technology that had recently become available. LexisNexis was at the forefront of developing electronic accessibility of legal documents. When we first opened our doors, this tech took the form of a “UBIQ” desktop computer terminal. A few word or term searches punched into the little (for its time) red wonder, and voilà! You could print whatever information you needed on this odd silver paper (and watch some of the ink stick to your fingers). It was much easier than a trip to the library.

Those early computer models now belong in antique shops, but they did get legal information into the minds of attorneys faster than before.

Unfortunately, faster isn’t always better.

The caveat of the computer age

With court decisions available at their ink-stained fingertips in seconds, some attorneys fell into a trap: they stopped thinking about the “why” behind legal rules. Searching for a word or phrase often brings up the most recent court rulings on an issue, which some attorneys think is all they need. Those attorneys may not bother to research and consider the history of how we got to those rulings. That’s a dangerous problem we’ve seen develop over the past two decades.

Imagine driving on a freeway and taking the wrong exit by mistake. You could drive for hours down that road. The highway signs look similar, the road is paved the same, the mile markers look familiar, but you’re headed completely in the wrong direction!

The same could be said for doing only superficial research and assuming that a particular rule applies in your client’s case. For example, a dozen court decisions might apply a rule a certain way. But if your attorney stops his or her research after a quick review of only the most recent decisions using a certain word or phrase, the attorney might never learn of historical decisions that show the rule works differently in a case with your particular facts.

A crude digital search may only present a snapshot of the relevant court decisions. It doesn’t necessarily tell you how the law developed. But how the law developed might be critical to a client’s specific case, or even support advocating an extension or change to the law.

Classic techniques working in harmony with current technology

Let’s be clear: electronic search methods are a major boon to the legal profession. It’s much faster and more efficient than hours of library searching. But an effective attorney can’t give in to the temptation of stopping his or her research after reading a few of the more recent court decisions about a given rule. The attorney has to take advantage of electronic research to go beyond the superficial search results and dig deeply into historical precedent to understand how a rule applies—or doesn’t apply—to a client’s case.

And yes, sometimes this even means a trip to the old law library when a particular resource isn’t available online.

This approach to research is especially beneficial to preparing a case before it even begins. One thing we’ve noticed over the years is the tendency for some attorneys to start their deep legal research only after filing a lawsuit. But because we understand how to use both electronic and non-electronic research tools effectively, we prefer to dig deeper and understand the relevant legal rules and their history before we even file a lawsuit.

This lets us frame the allegations of the lawsuit the right way. It also lets us ask the right questions in discovery and depositions so that we can build the support that we need to win a client’s case at trial or negotiate a better settlement. Armed with a deep understanding of the relevant legal rules and the reasons why a certain rule may or may not apply in a given case, well-prepared attorneys are able to enter the legal arena with the knowledge necessary to get to the heart of that case in its early stages.

Our firm is built on a foundation of research. We cherish learning, and we’ve seen the benefits that our method of preparation brings for our clients and their cases. Using all available research resources and taking the time to build a deep understanding of the relevant law and its history is the key.

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

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Paralyzed But Not Immobilized

Posted on Wed, Sep 23, 2015 @ 4:38 PM

Receiving a call that your son or daughter has been involved in a car accident is every parent’s worst nightmare. Unfortunately for one Ohio family, this nightmare became a reality. When Marc’s* family learned that he had been injured in a car accident they were distraught. His life had been spared, and for that they were grateful. They were not, however, prepared for the complications that would follow the accident.

The car accident

Marc and two of his friends were on their way home from a night out, when the driver took a curve too fast, causing the car to fly off the road and hit a tree. Because they had been wearing their seatbelts, the driver and front passenger were able to walk away from the accident. But Marc, who’d been sleeping across the back seat, was not as lucky. For a while, doctors were not sure if he would survive. To his family’s relief he did survive, but his neck had been broken and he was left paralyzed—he’d lost the use of his arms and legs.

As time passed, Marc made progress—first he moved a finger, then a hand, then he regained some sensation in his upper body. Despite his progress, doctors told his family he would be permanently paralyzed from the waist down. They would have to reconfigure their home with wheelchair ramps, pay for expert home care, and purchase a van to transport Marc to medical appointments and anywhere else he needed to go. Ensuring a good quality of life for Marc and themselves was going to be costly.

The insurance complications

Though Marc had insurance, there was some question as to what costs the various policies would cover. Because his situation was complicated, the family could look forward to two or three years of court battles before any settlement would be made.

Marc’s family decided to seek help from Ohio accident attorneys, and that’s when we got involved. Our goal was to help make life as easy as possible for Marc and his family, as quickly as possible.

Avoiding a trial

The great part of this story is that we were able to achieve positive results for Marc and his family without actually going to trial. Many complicated insurance cases end up in court because the insurance companies push the limits, and refuse to settle in cases where they know the insured has weak legal representation. We, on the other hand, have established a strong reputation across the state of Ohio as litigators who will certainly go to trial—and succeed, if insurance companies won’t settle. And frankly, that can be intimidating. Our reputation makes good-faith negotiations seem like a better alternative than a court battle.

We gathered information and spoke with experts. But most importantly, we identified the decision-makers at the various insurance companies—which can be a daunting task, especially for a family undergoing such a drastic life change. We then negotiated with those decision-makers and their attorneys. Through hard work, creativity, and forceful arguments, we were able to secure the family’s economic future. Marc could continue to live at home with his family and begin moving forward with his life.

A new lease on life

Beyond the insurance settlement for Marc’s family, his story has an even greater positive outcome. He’s not letting his injury hold him back. He’s active in the Christopher Reeve Foundation, helping others who share his disability. Marc has even gone bungee-jumping—in his wheelchair. Everybody who knows Marc is cheering for him from the sidelines, including us.

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

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

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