WORKERS' COMPENSATION - SOCIAL SECURITY DISABILITY - MEDICAL MALPRACTICE - PERSONAL INJURY - PERS

Archive for 2015

What Can an OPERS Attorney Do for Me?

Hiring a lawyer to help you with your Ohio Public Employees Retirement System (OPERS) claim gains you an expert, ally, and advocate. Which is a flowery way of saying that a Cleveland, OH, PERS attorney can do the following things for you:

 

  • Interpret pension, disability and spousal eligibility rules
  • Collect and present evidence to support your claims for benefits
  • Represent you during hearings
  • Steer you to other sources of financial support and health care
  • Always be on your side through a difficult process that is likely to last far longer than should be necessary

 

The first and last services may provide the greatest value. OPERS is not alone among pension plans in using complex formulas and doing little to help participants understand what benefits they can and should receive. The program does excel at both, however. Confusion often leads to frustration, which can mount until a person who should be receiving payments and support decides giving up on a claim makes more sense than continuing to fight denials.

 

The Ohio retirement lawyers with Agee Clymer Mitchell and Portman have decades of combined experience in cutting through the legalese contained in OPERS letters and coverage statements. They can also analyze years’ worth of paperwork to uncover inconsistencies, payment errors, and unjustified benefit reductions.

 

When these efforts reveal grounds for appealing a pension or disability claim denial, the legal team will do all they can to build a successful case for securing benefits. This work can include requesting employment records, going through many years of bank and OPERS statements, interviewing former employers, and tracking down original birth certificates, marriage licenses, adoption contracts, and divorce decrees. Financial and family records can both prove essential in retirement cases.

 

Importantly, the legal team will know where to expect obstacles and how to overcome them. Bureaucracies follow procedures seemingly designed to place roadblocks in the way of individuals who seek help and require information. The key to clearing those impediments to progress lies in spotting the barriers early. People like the attorneys with Agee Clymer Mitchell and Portman who regularly conduct OPERS appeals have learned to keep cases on track by filing the proper forms with the correct offices by the necessary dates. They also maintain professional working relationships with the retirement plan staff that make resolving unforeseen problems easier.

 

Avoiding stall-outs and derailments will not always make an OPERS appeal reach a quick resolution. Cases involving pension and disability claims can take years and involve multiple levels of administrative hearings and civil court proceedings. The plaintiff will need income, medical care, and other kinds of support during this time. His or her retirement attorney will be able to offer advice on where to find those alternate resources.

 

Which brings us back to being on the retiree’s and family’s side throughout the long and trying process of securing OPERS benefits. The lawyer will listen and care, act only in your interest, and stand up for your rights when it feels like no one else will.

 

Agee Clymer Mitchell and Portman offers free consultations to all people with questions about problems with OPERS benefits. Call us at (800) 678-3318 or contact us online to let us know how we can be of service.

Types of Medical Malpractice

Any health care provider can make a mistake that leaves a patient must be worse off than when he or she sought treatment. The simple mantra that guides all medical practice—“Right intervention, right patient”—leaves almost infinite room for error. This is because “intervention” means telling the patient what the problem is, performing surgery, giving drugs, or even doing nothing when taking more drastic action appear contraindicated.

Sadly, when a doctor, nurse, dentist, pharmacist, or technician fails to follow the correct procedures or exercise the appropriate amount of attention to detail, individuals who were already suffering experience even worse outcomes. An incomplete list of types of medical malpractice includes:

 

  • Misdiagnosis/Failure to diagnosis, meaning the appropriate treatment can be administered
  • Wrong site surgery such as operating on the left leg when the right leg is the injure one
  • Surgical errors such as improperly amputating a body part, injuring internal organs, and even setting patients on fire when gases such as oxygen encounter too much static electricity
  • Wrong patient surgery, with a shocking example of this being giving a man breast implants when he had actually requested pectoral muscle reconstruction
  • Wrong drug delivery, including prescribing and dispensing a medication different from the one indicated or one that would clearly cause serious interaction with other drugs the patients is receiving
  • Wrong dose, which is a particular problem with anesthesia drugs and prescription painkillers
  • Incorrect drug administration
  • Birth injuries
  • Nursing home abuse and neglect

 

When any of these happen to you or a loved one, you must speak with a medical malpractice lawyer in Cleveland, Ohio. Succeeding in receiving compensation for a personal injury or wrongful death caused by medical malpractice requires showing that the error resulted from negligence or recklessness. Only an experienced Cleveland medical malpractice attorney will have the knowledge and resources necessary to find and present such evidence.

 

A quick look at a hypothetical birth injury case illustrates this. Many problems can occur during a pregnancy and delivery, and dozens of health professionals from OB/GYNs to midwives and pharmacists may be involved in caring for the mother and baby. Miscommunications, duplicative treatments, and harmful errors could occur at any time. If the child is born suffering from cerebral palsy or another unexpected disability, reconstructing the medical history is essential. It will also be necessary to have independent experts review all the medications prescribed and administered, to analyze the actions of all the members of the team who conducted the delivery, and to check into the histories of those medical practitioners for patterns of poor patient outcomes.

 

Then, if medical errors are discovered, judgments must be made as to whether human fallibility is to blame or if an erring medical professional ignored or flouted best practices and failed to deliver care that met minimum standards. Related to this, it must be determined whether the hospital where the delivery was performed had adequate rules and safeguards in place to protect patients from poorly trained and insufficiently equipped practitioners.

 

The mother in this case could not be expected to do all of this. No patient or family struggling to deal with the consequences of suspected medical malpractice could. Many Cleveland-based medical malpractice attorneys with Agee Clymer Mitchell and Portman do nothing but investigate poor-performing health care providers with the intention of making sure the patients they harmed receive compensation. So if you think a negligent or reckless health care provider has committed malpractice against you or a family member, call us at (800) 678-3318 or reach out on online to let us know how we may be able to help. The consultation will cost you nothing.

Appealing a Disability Claim Denial

A majority of first-time claims for worker’s compensation and Social Security disability benefits get rejected. The approval rates for short- and long-term disability claims filed with private insurance companies are not any better. This reality leaves injured and ill people struggling financially and searching for answers.

The Cleveland, OH, disability attorneys with Agee Clymer Mitchell and Portman can at least fill in few of the information gaps with this list of frequently asked questions about appealing disability claim denials.

 

Why was my disability claim denied?

State and federal laws require the Ohio Bureau of Worker’s Compensation, the Social Security Administration, and insurers to send claimants letters that explain why a claim has been approved or rejected. Unfortunately, those written communications are not always easy to interpret. Asking an Ohio disability lawyer to help you translate the legalese can reveal whether you were turned down for one of the following common reasons, or for another issue altogether:

  • Lack of eligibility: For instance, lifelong teachers who participate in the State Teachers Retirement System may not be eligible for Social Security Disability Insurance.
  • Statute of limitations/Missed filing deadline: Worker’s comp programs generally give individuals hurt on the job two years from the date of the incident to file a claim.
  • Non-qualifying illness or injury: Private insurers maintain lists of noncovered conditions, and worker’s comp covers only job-related disabilities.
  • Insufficient evidence of disability: Case reviewers apply strict criteria and give particular weight to the diagnoses and assessments of the doctors and therapists paid by the program.

 

Can I appeal?

Yes. You have the right to request several levels of review and even to file a civil lawsuit against a government agency, retirement plan, or insurance company that turns you down for disability benefits.

 

How long will the appeal process take?

Each case will differ depending, in part, on statutory deadlines for government agencies and company policies for insurers. You should expect to wait at least six months to a year for a decision on an initial appeal. The timeline will expand if the program or insurer requests additional information without issuing a ruling.

 

What do I need to do in order to appeal?

Like timelines, appeals procedures vary by program and company. The level of the appeal being pursued also dictates certain steps that both you and the organization need to take.

At a minimum, you can expect to do the following:

  • Submit a written notice of intent to appeal
  • Follow up that notice with a written summary of your grounds for appealing
  • Collect and submit additional evidence (eligibility, medical records, etc.)
  • Schedule hearings

 

Will I need to attend hearings on my appeal?

Unless you file a lawsuit, you should be able to rely on your disability attorney to represent you during administrative hearings. You may, however, be asked to meet with your lawyer and representatives of the disability program to answer specific questions. Those sessions work like depositions held in the course of a lawsuit.

 

Can Agee Clymer Mitchell and Portman help me appeal my disability claim denial?

Ask us. Call (800) 678-3318 or share your story online to request a free consultation with an experienced Ohio disability lawyer.

What Is OPERS?

The Ohio retirement and disability attorneys with Agee Clymer Mitchell and Portman field this question often. We hear it from spouses who have lost life partners, adult children who find themselves caring for elderly parents, and even from OPERS beneficiaries who must navigate the complex program to fully access their benefits for the first time.

Here are the basics. If you need more information, and especially if you need to appeal a denial of OPERS benefits, do not hesitate to contact our law firm’s Cleveland offices.

 

What does the acronym OPERS stand for?

OPERS is shorthand for the Ohio Public Employees Retirement System.

 

Who is covered by OPERS?

All full-time and part-time employees of Ohio state agencies, local governments, state law enforcement organizations, public safety departments, most student university employees, and elected officials and political appointees who opt into the system participate in OPERS. School teachers have their own pension and disability plan called STRS, as do non-teaching employees of public K-12 schools (SERS).

 

What benefits does OPERS pay?

OPERS operates like a combination of a traditional pension plan, a 401(k)/IRA investment plan, and a disability insurance plan.

How state retirement program participation affects Social Security, Medicare, and worker’s compensation eligibility is complicated. Speaking with a Cleveland, OH, OPERS lawyer is probably a good idea if you have worked for private employers in addition to the state.

 

How do I know what OPERS benefits should be paid?

The amount and timing of benefits vary by individual circumstances. For instance, pension benefits are calculated according to a formula that factors in years of service, hiring date, retirement age, and highest average salary. Disability payments depend on the beneficiary’s degree of impairment and salary at the time when working was no longer possible. Proving the cause, nature, and extent of the disability will also be necessary.

Figuring all this out can be a challenge, especially for surviving spouses and for family members who must take over their loved one’s financial affairs. Consulting with a Cleveland, OH, OPERS lawyer can help such people determine whether the retirement system is operating correctly on their behalf.

 

Why might OPERs benefits be withheld or denied?

Public Employees Retirement System benefits stop or never get approved for many reasons. A few examples include the following:

  • The program has incomplete records, ranging from a beneficiary’s new address to dates of employment and contributions to voluntary retirement accounts.
  • OPERS believes a retiree has died.
  • The identity and relationship of a surviving spouse is being disputed.
  • OPERs does not accept the validity of the medical evidence submitted to support a disability claim.

 

Can Agee Clymer Mitchell and Portman help me if my OPERS benefits are not coming?

Many of our lawyers have handled Public Employees Retirement System cases for years. Call us at (800) 678-3318 to request a free consultation. We will need to learn more about your specific situation, but we know we can at least point you toward the information and assistance you require.

What Can I Be Awarded for a Personal Injury?

Let’s tackle this one FAQ-style.

What counts as a personal injury that merits an insurance settlement or court award?

Legally, any physical harm you suffer due to the negligence or recklessness of someone else or an organization can be considered a personal injury. The Cleveland personal injury lawyers with Agee Clymer Mitchell and Portman provide much more detailed answers here and here.

 

What can I ask for in a personal injury insurance claim or lawsuit?

Personal injury victims can seek

  • Compensatory damages
  • Nonmonetary damages
  • Punitive damages

Keep scrolling to learn more about each type of compensation and damage award.

 

Who pays those settlements and awards for personal injuries?

Insurance companies generally cut the actual checks to injured people and the families of deceased victims. Individuals and corporations can be made to pay out of their own pockets. Either type of claim or lawsuit can be complicated, so seeking advice and representation from a personal injury attorney is generally a good idea.

 

What do compensatory damages cover?

Compensatory damages represent monetary costs incurred by suffering a personal injury. The most significant of these are

  • Medical expenses that include emergency room treatment, hospital care, doctor visits, and medications
  • Disability costs such as physical and mental therapy, loss of a limb, in-home care, and medical equipment
  • Wages lost from both missing work while recovering and not being able to earn as much after the injury
  • Property repair and replacement, especially car repairs following a traffic accident

While wrongful deaths differ slightly from personal injuries, it is worth noting that all funeral expenses can be compensable (i.e., payable by the person or organization that caused the death). Recoverable funeral expenses can include burial costs and travel for relatives.

 

Can I get compensated for the full amount of all injury-related expenses?

Yes. Ohio law places no caps on compensatory damages for personal injuries and wrongful deaths. Working with a personal injury attorney in Cleveland, Ohio, to calculate the current total amount and lifelong financial burden of medical expenses, disabilities, lost wages, and property repairs is essential to ensuring you do not get lowballed with an insurance settlement or court award.

 

Do injury victims always receive all the compensatory damages they claim?

No. First, receiving any compensation at all depends on having an insurance company validate your claim or on convincing a judge or jury that someone else’s actions harmed you. Substantiating an insurance claim or lawsuit with strong evidence is a must, and something an experienced and dedicated Cleveland personal injury lawyer can help you do.

Second, you may not get all your injury-related expenses covered if you are found to be partly at fault for hurting yourself. Ohio courts observe a legal standard called comparative negligence. Some people refer to this as contributory negligence. Whichever term is used, applying the rule reduces a personal injury settlement or award because the victim was acting somewhat negligently.

An example of comparative negligence would be not wearing reflective clothing while walking your dog at night and getting hit by a car. The driver might be found 90 percent responsible, and you 10 percent. Those findings would reduce total compensation of $100,000 to $90,000.

 

What are non-monetary damages?

The major kinds of non-monetary damages can be recovered following a personal injury are:

  • Pain and suffering, which encompasses physical discomfort, emotional distress, and mental disturbances
  • Loss of consortium (i.e., family relations, including sex with a spouse)
  • Loss of companionship
  • Loss of society
  • Loss of care
  • Loss of assistance
  • Loss of attention
  • Loss of protection
  • Loss of advice
  • Loss of guidance
  • Loss of counsel
  • Loss of instruction
  • Loss of training
  • Loss of education

The distinction here is that no exact dollar value can be affixed to a problem like no longer being able to fully enjoy life and care for friends and family following a personal injury.

 

Is there a limit in Ohio on non-monetary damages?

Unfortunately, yes. State law caps payments for non monetary damages at $250,000 for almost all kinds of personal injuries. That cap can rise to $350,000 in extreme cases.

 

What do punitive damages represent?

Just like the name implies, punitive damages represent a financial punishment for causing a personal injury while acting with reckless disregard for others’ health and safety. For instance, injuries caused by drunk drivers can bring punitive damages because an intoxicated person who drives shows little respect for other people.

Importantly, punitive damages get assessed separately from any criminal fines and restitution.

 

Does Ohio Law put a cap on punitive damages?

Again, sadly, yes. The most a personal injury victim can collect in punitive damages is double the amount of compensatory damages.

 

What if I have more questions about my possible personal injury case?

Click here or call (800) 678-3318 to request a free consultation with an Agee Clymer Mitchell and Portman personal injury attorney. We have offices across Ohio.

What is Disability Insurance ?

Disability insurance provides income replacement after an injury or illness makes working impossible for a brief time or forever. The best-known forms of disability insurance are workers’ compensation and Social Security. Individuals can also carry private disability coverage through their job, or they can purchase a disability policy in the same way that they get automobile insurance and homeowner’s or renter’s insurance.

Agee Clymer Mitchell and Portman’s Cleveland disability lawyers have addressed Ohio workers’ comp and Social Security Disability Insurance (SSDI) in earlier posts to the firm’s website. Here, we look at privately purchased personal disability coverage plans.

 

Do You Need Your Own Disability Insurance?

Only you can make that determination. Here are four of the factors you need to consider:

  • No one needs any kind of insurance until they do. This, admittedly, is not strictly true. You can get ticketed for not having car insurance, for instance, and denied a loan for not having a policy for a house you want to buy. The points holds, however, that paying premiums on most forms of accident and health coverage can seem like useless expenses until the worst happens. Weighing costs against risks is necessary.
  • Workers’ comp and Social Security do not cover everyone. If you work for the government at any level, for a public school or university, or for yourself, you probably will not qualify for workers’ compensation of SSDI benefits for the simple reason that neither you nor your employer pay into the programs. Payroll taxes and paycheck deductions that rarely affect public employees and independent contractors fund federal and state disability programs.
  • Workers’ comp and SSDI claims often get denied. In 2010, just more than one-third of all SSDI applications got approved. During the state’s 2014 fiscal year, the Ohio Bureau of Workers’ Compensation provided benefits to 97,572 new claimants while still having 858,773 cases under review. Safety nets sometime have large holes.
  • Some jobs come with significant risks for illness and injury. Commercial drivers, construction and maintenance workers, and factory and warehouse workers face more dangers on the job than do people who sit in offices. With workers’ comp and SSDI not guaranteed, carrying private disability insurance can make sense for those in high-risk professions.

 

What Does Disability Insurance Cover?

As noted, disability insurance replaces income. Short-term policies start paying immediately, with benefits set as a percentage of the policyholder’s earnings before he or she got hurt or sick. Long-term policies begin paying benefits several months or a year after a disability becomes apparent.

In general, a qualifying disability can fall into any of the following categories:

  • Temporary, typically considered to be an injury or illness that keeps the person out of work for more than a week but less than six months
  • Long-term, an injury or illness that keeps the person out of work for a year or longer
  • Partial, a condition from which a person recovers enough to start working again but which limits earnings and physical function
  • Permanent, a condition that partially or totally limits earnings and physical function for the person’s entire life
  • Total, an injury or illness that leaves a person completely unable to work

 

The exact provisions of disability insurance policies vary from contract to contract and from insurer to insurer. The terms and benefits also depend on how much a policyholder pays in premiums. Benefits can be paid monthly or in lump sums and used for any expense the beneficiary chooses, from settling medical bills to making mortgage payments.

 

How Does the Disability Insurance Claim Process Work?

A policyholder does not have to get injured or sick due to work-related activities to qualify for private disability insurance payments, but the person does have to present convincing medical evidence of a disabling condition. Doing that often requires getting examined and assessed by doctors and occupational specialists chosen by the insurance company. Periodic reassessments of a beneficiary’s ability to work are also likely.

It is important to note that the condition usually only has to keep a person off the job. Broad exclusions from workers’ comp and SSDI eligibility for common problems like back pain and respiratory diseases generally do not apply under private disability insurance policies.

 

Do You Need Assistance With a Disability Insurance Claim?

Dealing with an insurance company for any reason can leave you confused, frustrated, and uncompensated for a legitimate claim. Any of those outcomes are understandably unacceptable if you find yourself struggling physically, unable to work, and counting on disability benefits you have paid toward.

The experienced disability lawyers in the Cleveland offices of Agee Clymer Mitchell and Portman may be able to serve as your legal champion. We welcome opportunities to help individuals prepare disability claims and appeal denials. Contact us online or call (800) 678-3318 to request a free case consultation.

Why Your Disability Claims Can Get Denied

The clearest answer to why a disability claim gets denied probably comes from a FAQ on the Ohio Bureau of Workers’ Compensation website. The agency states, “If a claim is denied, it is often because of a lack of information.”

Exactly like a nutshell, though, that answer conceals the actual meat of the matter. What information got omitted? Can an applicant and his or her Ohio worker’s compensation attorney provide the missing info as part of an appeal? How must that additional information be presented, by when, and to whom?

We address several of those concerns elsewhere on webpages prepared by Cleveland Social Security lawyers and disability lawyers who practice at Agee Clymer Mitchell and Portman. Here, let’s focus on the specific issue of what evidence an injured or ill person needs to submit in order to have a short- or long-term disability.

Each case and, therefore, every disabled person’s application for benefits will differ in specifics. Still, the general requirement of needing to establish that a temporary or lifelong condition prevents you from working enough to support yourself financially always exists. Accident reports, medical records, expert opinions from physicians and other health care providers, and evaluations from occupational specialists can stand as proof. Disability applicants who can produce multiple forms of such evidence have a greater chance of qualifying for benefits.

To understand how evidence for a disability gets assessed, it makes sense to look at the most-common reasons applications for Social Security Disability Insurance (SSDI) get denied. An audit covering 1992 through 2010 revealed that the majority of people denied federal disability benefits

  • had an impairment that was not expected to last 12 months,
  • had an impairment that was not considered severe,
  • were able to perform his or her usual type of work,
  • were able to perform another type of work
  • had an impairment resulting from drug addiction or alcoholism
  • provided insufficient medical evidence
  • failed to cooperate
  • failed to follow prescribed treatment
  • did not want to continue development of the claim, or
  • returned to substantial work before disability could be established.

 

Two of these reasons merit special consideration, especially as they might apply in workers’ comp and other non-Social Security disability cases.

First, denial on the grounds of being uncooperative points to requirements a disability program places on applicants and beneficiaries to submit to physical examinations and interviews by specialists selected by the program. Refusing to get checked out by program doctors and staff almost automatically flags an application for denial.

Similarly, the mentions of “prescribed treatment” points directly to the reality that receiving Ohio workers’ compensation benefits often depends on participating in occupational therapy sessions. Proof of enrollment and keeping appointments are essential for keeping disability status.

 

Get Help With Avoiding and Appealing Disability Denials

Whether you want to ensure you submit all the information you need to have a first-time disability application approved or you have received notice of a claims denial, an Ohio worker’s compensation attorney or SSDI lawyer with Agee Clymer Mitchell and Portman may be able to help. Anyone who has already heard a “no” should definitely seek legal advice and representation because the deadlines for filing appeals and collecting additional information are tight.

We offer no-cost consultations on even the toughest workers’ comp and Social Security cases. Reach out to us through this site or call (800) 678-3318 to ask your questions.

What Constitutes as a Personal Injury?

Three characteristics distinguish personal injuries from other kinds of legal harms:

  • The injury affects a specific individual’s body, brain, or emotional well-being.
  • The injury results from negligence or recklessness rather than malice or intent.
  • The injury stems directly from a failure to exercise reasonable care.

(more…)

What Is an Intentional Tort?

A tort is a legal harm; therefore, an intentional tort is something done deliberately to cause harm. The harm can be a physical injury, death, a loss of or damage to property, emotional distress, a violation of rights, or a combination of those adverse outcomes. A person or a legal entity like a corporation can commit a tort and be found to have acted with intent. Victims of intentional torts are usually individuals, but groups can also claim to have suffered similar harms from a single action or set of related actions.

Importantly, people victimized by intentional torts have the legal right to sue for damages in civil court. The process is similar to filing a personal injury lawsuit for compensation following a car accident, but the actual experience of pursuing an intentional tort claim is much different. The difference stems largely from having to show intent. Settling an insurance claim or getting awarded punitive damages after getting hit by another driver requires showing that the person was negligent or reckless–distracted or drunk, for instance. In an intentional tort case, the plaintiff must convince an arbitrator, judge, or jury that the defendant meant to hurt or otherwise harm the plaintiff.

Another factor is that many actions that give rise to intentional tort lawsuits constitute serious crimes. That can be a good or a bad thing. On the positive side, criminal investigations and prosecutions generate mountains of physical evidence, witness testimony, and court records that can be used in various ways in the course of an intentional tort case. That benefit can turn into a potential negative, however, because criminal proceedings can exhaust a victim to the point that he or she simply decides that seeking monetary compensation in civil court is not worth it. Also, proof of conviction cannot be presented against a defendant in an intentional tort case.

Consulting with an experienced Ohio personal injury lawyer in the Cleveland offices of Agee Clymer Mitchell and Portman can help you understand more about intentional torts and if filing a claim makes sense. To help you determine if making an initial call to us is in your best interest, consider the following information.

Any Tort Can Be Intentional

Imagine any way to hurt a person or destroy their property, and you can rest assured–if uncomfortably–that someone has done that thing, and often several someones and repeatedly. We define the most common types of intentional tort cases elsewhere on our website, but the brief list looks like this:

  • Assault and battery, both threatening and causing physical harm
  • False imprisonment, including kidnapping and taking someone into police custody improperly
  • Libel and slander, known collectively as defamation
  • Fraud
  • Infliction of emotional distress, including sending hate mail and bullying
  • Invasion of privacy, including peeping and identity theft
  • Theft
  • Trespassing

Proving an Intentional Tort Can Be Difficult

Succeeding as a plaintiff in an intentional tort lawsuit requires showing at least four things:

  1. An action was taken that caused an injury or loss.
  2. You, as the plaintiff, actually suffered the injury or loss.
  3. The person or organization named as the defendant took the action that harmed you.
  4. The defendant knew the action would cause the injury or loss to the plaintiff.

The fourth criterion has some leeway; for example, sometimes a plaintiff and his or her attorney only need to show that the defendant had every reason to suspect that the action would cause substantial harm but not necessarily the actual harm claimed. An example where this lower standard might apply is a claim for burn injuries against an alleged arsonist who set a building on fire when he thought it was unoccupied.

Establishing intent to harm can involve presenting a history of verbal or written threats prior to the harmful act, establishing what courts call animus (e.g., racism, personal hatred), or describing previous harmful actions the defendant took against the plaintiff. For a corporate defendant, proof of intent could include company records documenting executives’ knowledge that they were harming customers. Such evidence is essential to establishing intent, and a plaintiff who cannot produce it generally will not win an intentional tort case.

People hurt at work also must know that a relatively recent revision to Ohio law and a series of rulings by the Supreme Court of Ohio have made bringing intentional tort claims against employers virtually impossible. Regardless of how an on-the-job injury or occupational illness occurs, seeking workers’ compensation benefits and other kinds of disability payments is always a better option for an injured or ill employee.

Ask Us Your Intentional Tort Questions

We know we cannot address every important issue concerning intentional torts in a blog post. Call Agee Clymer Mitchell and Portman (800) 678-3318 or reach out online to connect with an Ohio plaintiff’s attorney who can help you learn more about these types of civil lawsuits and whether you have a case. Initial consultations cost you nothing.

What to Do if You’re a Victim of Malpractice

Answering this question puts us at Agee Clymer Mitchell and Portman in a tough spot. While our Ohio medical malpractice attorneys have helped dozens of victims of doctor errors and medication mistakes, each of those cases involved unique circumstances. There is no single “right” way to respond after a health care provider or hospital has harmed a patient through negligence or recklessness.

Up to one-third of U.S. patients may suffer from medical malpractice each year, with the results ranging from unnoticeable to death. Some problems are severe and immediately apparent, such as the shockingly high number of wrong-site surgeries (e.g., removing the wrong leg) and the almost unbelievable persistence of surgical teams leaving sponges and other implements inside patients. Others, such as unsafe combinations of medications and missed diagnoses may only reveal themselves when the victim ends up hospitalized or dead.

While we cannot say what you, specifically, should do if you suspect that medical malpractice harmed you or a family member, we can discuss these three things that all people should do when it appears a health care error has happened:

  • Receive appropriate care to address the problem
  • Identify what went wrong
  • Consult with an experienced medical malpractice lawyer

Focus on Physical and Emotional Recovery

Even if you think you can no longer trust doctors, nurses, pharmacists or hospitals, the most important thing to do after experiencing a medical mistake is to seek necessary health care. Infections can usually be treated, overdoses/poisonings can be countered when caught in time, and surgical errors can sometimes be repaired. When fully recovering is not possible, seeking care to prevent further harm still needs to stand as the first priority.

Family members who lose loved ones to suspected medical malpractice also need to concentrate on their emotional well-being. Feelings of anger and betrayal can become overwhelming, but the immediate focus should remain on honoring the deceased and keeping family ties strong.

Figure Out What Happened

The best summary of the medical malpractice problem in the United States remains in the Institute of Medicine’s 1999 special report To Err Is Human. Written to spur reforms throughout the nation’s health care system, the publication mostly shocked people by revealing the broad scope and high incidence of medical errors. Crucially, it includes this list of the most common types of malpractice:

  • Diagnostic
    • Failure to employ indicated tests
    • Use of outmoded tests or therapy
    • Failure to act on results of monitoring or testing
  • Treatment
    • Error in the performance of an operation, procedure, or test
    • Error in administering the treatment
    • Error in the dose or method of using a drug
    • Avoidable delay in treatment or in responding to an abnormal test
    • Inappropriate (not indicated) care
  • Preventive
    • Failure to provide prophylactic treatment
    • Inadequate monitoring or follow-up of treatment
  • Other
    • Failure of communication
    • Equipment failure
    • Other system failure

Pregnancy, childbirth and extended hospital stays put people at particular risk for malpractice. Notice, however, that every kind of medical practice and procedure is prone to error, from misdiagnosing a potential fatal disease like cancer and dispensing the wrong drug to a patient to administering too much anesthesia and failing to share essential patient information with all care providers.

Ask ‘Was the Proper Standard for Care Met?’

Health care providers should be open and honest about mistakes; especially ones that further harm sick and injured patients. Hospitals, doctors, pharmacists and other medical practitioners have recently gotten better about sharing information regarding errors, but getting clear answers as to why adverse health outcomes occurred usually takes input from numerous experts and close, expert review of extensive medical records.

Finding specialists to conduct those examinations and offer those opinions can prove difficult, not to mention expensive. Before committing to doing this, people who think they have fallen victim to medical malpractice need to decide whether it seems likely that a person or organization was negligent or reckless. Succeeding with a medical malpractice claim requires showing that the care or services provided did not meet generally accepted standards.

Standards exist in many forms, including statements of best practices published by professional societies and endorsed by government agencies; instructions for use that come with medical equipment and prescription drugs; and checklists used before, during, and after surgeries. Failing to adhere to any of those forms of guidance could constitute negligence. Hospitals and pharmacies can also be found negligent if they employ untrained and unprofessional staff members, fail to maintain facilities and equipment properly, or do not adequately oversee practitioners.

Recklessness in the area of medical malpractice can encompass things like issuing diagnoses despite not holding a medical license and performing surgery while under the influence of alcohol or narcotics.

Share Your Story With an Experienced Medical Malpractice Lawyer

Outside of having the wrong limb amputated or some equally egregious error, you probably cannot determine whether you or a loved one received medical care that met or exceeded recognized standards. You only know that the best outcome did not result. Sadly, not even the best medical care works every time. So how can you distinguish between malpractice and bad luck, or simple inevitability?

You can reach out to a medical malpractice attorney at Agee Clymer Mitchell and Portman. Lawyers in our Cleveland offices, as well as our other eight other locations across Ohio, will speak with you for free and can put you in touch with independent physicians and medication use experts who can answer your most complex questions regarding the incident that left you or your family member worse off than before.

You can reach us by phone at (800) 678-3318 or share your story with us online. Let us know how we can help.

ACML Associate Katherine Ivan Quoted in Dispatch Article

The Columbus Dispatch recently released an article on the decline in workers’ compensation claims across Ohio and the country. “Going to work in Ohio gets safer” quotes several knowledgeable people regarding workers’ compensation on safety improvements and decreased claims. (more…)

ACML Partners Meet Former President Bill Clinton

This past weekend, partners Eric B. Cameron and Gregory R. Mitchell attended the Democratic Party’s annual state dinner. (more…)


Cleveland OH Workers Comp Lawyer
Agee Clymer Mitchell & Portman
6100 Oak Tree Blvd., Suite 200, Cleveland Ohio 44131 USA
Tel: (216) 328-2125 Fax: (614) 221-7308 Map