SHAKE THE MONEY TREE
On a cold winter day in 1992, we received a telephone call from Gregg Pavlides brother. He told us that Gregg was being treated for gunshot wounds at a hospital in Cleveland. Apparently, two teenage boys, after stealing handguns at a Canton gun show, got high on gasoline fumes, stole a car, and went on a joy ride running over trash cans and turfing lawns. Gregg saw the boys and followed them in his own vehicle. Eventually the boys struck a snow bank and became stuck. Upon approaching the vehicle, Gregg was viciously shot twice, one bullet severing his spinal cord. This injury would confine Gregg to a wheelchair for the rest of his life. His brother came to Allen Schulman & Associates asking for our help.
After seeing Gregg in the Cleveland hospital, and investigating the facts of his case, we were convinced that not only were the boys responsible, but the gun show was too. The facts revealed that the gun show promoter took no precautions against theft of weapons displayed at the show, nor were there any rules concerning the admittance of minor children to the show. In fact, the boys told the police the gun show was like a flea market with unsecured weapons lying in piles. The boys said vendors were trying to sell them guns and that one vendor actually sold them hollow-point ammunition in violation of state and federal laws.
Thus, on July 27, 1992, we filed suit the first suit in the country attempting to hold a promoter responsible for the negligent operation of a gun show. Although this was the first such action against a gun show promoter, the underlying theory was well established.
After extensive pretrial discovery, the gun show filed for summary judgment claiming that there was no legal basis for Greggs suit. We responded, but on September 8, 1993, the trial court granted the gun shows request holding that while the gun show was probably negligent, the shooting of Gregg was not foreseeable. Undeterred, we appealed.
After extensive briefing of the issues and argument to the Court of Appeals, the appellate court reversed the trial courts decision on February 14, 1994 and said Mr. Pavlides was entitled to a jury trial on all the issues. The gun show then appealed to the Ohio Supreme Court.
Following more briefing in the Ohio Supreme Court, the Court, two years after the filing of the suit, declined to hear the case Mr. Pavlides case could finally be heard
On May 8, 1995, trial commenced before a jury in Judge James Gwins courtroom. After five days of evidence, the jury returned a verdict in the amount of $750,000 compensatory damages and $12,000 punitive damages. Was the case finally over? Could Gregg Pavlides finally receive his just compensation?
On June 21, 1995, the gun show began its appeal of the verdict an appeal to the same Court of Appeals where over a year earlier it had lost. It was to lose again, but not until more extensive legal briefing and oral argument before the Court. On June 10, 1996, the Court issued its well-reasoned opinion upholding Mr. Pavlides verdict. Did the gun show give up?
On July 24, 1996, the gun show appealed to the Ohio Supreme Court. More legal research and briefs ensued. Finally, On December 18, 1996, over four years after our suit was filed, the Supreme Court said No the justices did not want to hear this case. Was that the end of the journey?
On December 26, 1996, the gun show moved the Supreme Court to reconsider its decision declining to hear the case. In addition, a new party Gun Owners of America entered the case also urging the Court to reconsider. Gun Owners hoped to change the entire complexion of the case. As previously noted, the crux of this dispute was whether a gun show promoter owes a duty to the general public to take reasonable precautions to prevent unsupervised minors from obtaining firearms and ammunition at his show. This case had nothing to do with a citizens constitutional right to bear arms. In fact, one of Mr. Pavlides experts was himself a gun show promoter and decorated member of the N.R.A. However, according to Gun Owners, Mr. Pavlides was attempting nothing less than an end-run around the Second Amendment. More research more briefs same result. No, the Supreme Court said on January 29, 1997. Certainly, you say, the case was now over!
In March 1997, I received a phone call from the gun shows attorney. Would Mr. Pavlides be willing to forgive the $12,000 in punitive damages plus the 10% interest that had been accruing on that amount? Needless to say, the answer was No. Well then, said the insurance lawyer, it looks like an appeal to the U. S. Supreme Court, or youll have to chase the gun show for the punitive damage verdict. After reminding the attorney that we had demanded and received a $1 million bond on the verdict (which guaranteed full payment of the verdict plus interest) we finally received a call on March 17, 1997 confirming settlement of Mr. Pavlides case.
As I write this editorial on Mr. Pavlides legal battle, I am reminded of the publics view promoted by the insurance industry that injured people need only shake the money tree to obtain outrageous compensation. Throughout the nation, insurance companies and other special interest groups have spent millions of dollars to convince us that people who are paralyzed or have suffered other permanent injuries take advantage of our civil justice system, satiating their greed at the publics expense. Are we to believe these special interest groups have the public good in mind? Or is it more reasonable to believe such arguments are motivated by the insurance industrys own bottom line?
Insurance companies and special interest groups assert it is too easy for litigious citizens to receive money for insignificant injuries. Mr. Pavlides fought and prevailed despite tremendous obstacles and his permanent handicap. Would any of us say his fight was easy? Did Mr. Pavlides simply shake the money tree to obtain his deserved and just compensation?
CHANGE IN OHIO TORT LAW
It is a little known fact Ohio law permits health insurance companies to deny coverage where an insured's injuries are caused by voluntary intoxication
What You Dont Know Can Kill You
Ask the average person on the street what their perception of medicine is, and they will tell you its a helping profession dedicated to the healing of sick and injured people. What they do not often realize is that medicine is an enormous, competitive, profit-oriented industry. The consequences of that fact can have a significant impact on the quality of patient care.
A Little History
Question: What is the only business where the customer walks into the store and the salesperson tells the customer what they are going to buy, and what it is going to cost? Answer: the medical profession. This situation is created by two factors. Unlike purchasing a car or washing machine, when someone needs medical care particularly a critically ill or injured patient they have no real choice about whether or not to purchase medical care or the ability to shop around. It is truly a life-or-death necessity. Secondly, because medicine is a complex mix of science and skill, the average person lacks understanding about what is necessary, or proper, medical care. We all rely upon our medical providers to provide us with the best medical care possible that is what we are lead to believe we can and should expect. However, the reality is sometimes quite a bit different.
In the past, physicians dictated what care was going to be provided. This was not a major concern to most patients, because the cost was passed onto insurance carriers. Tired of skyrocketing health care costs, insurance companies started to complain but the medical profession, in order to justify its charges, claimed much of the care was defensive medicine to avoid lawsuits. However, numerous studies, including those by the medical profession itself, have disproved the claim that defensive medicine was being practiced to avoid lawsuits. What was really occurring was physicians in many cases were self-dealing by referring patients for unnecessary tests to laboratories or diagnostic centers in which the physician had an economic interest, i.e., every patient referred resulted in more income to the doctor. Eventually, the insurance companies began to crack down on the charges by reviewing the medical necessity of procedures and the reasonableness of the charges. The eventual result of this cost containment (i.e., profit-increasing) initiative was what is known to everyone as managed care or HMOs. The problem with this concept is that insurance companies, even more than the medical industry, are driven by the bottom line of profits.
Impact On Patient Care
How has this affected the quality of care? It is not too far of a stretch to argue that the insurance industry, through its HMOs rather than the medical profession, is practicing medicine. Under their own definition of medical necessity, insurance companies now dictate to a large extent how long a patient needs to be hospitalized, what tests and procedures for which they will pay the doctor and what the reimbursement will be. Witness the recent reductions in coverage for maternity hospital stays to the point where having babies is referred to as drive-thru deliveries. Obviously, if the doctor or hospital is not going to be paid by the insurance company, the chance of being compensated is greatly reduced, and their interest in performing the tests or procedures is greatly diminished. Hospitals compete fiercely for patients to fill their beds, but they are only interested in paying customers.
These corners are being cut and the patient is completely unaware how or why. New mothers are sent home after only a one-day hospital stay, because the insurance industry decided this was a sufficient hospital stay in the majority of cases. In many cases, however, mothers are physically or emotionally ill-equipped to deal with a newborn in such a short time. More importantly, many mothers and babies develop post-partum complications that would be diagnosed earlier and treated more successfully if they were still in the hospital an extra day or two.
Often the physicians, themselves, caught up in the cost-containment mentality, are blinded by the forest when they are supposed to be taking care of the trees. In one case where a two year old child was brought to the hospital after having suffered febrile seizures, the child was sent home and found dead in her crib the following morning. The defense expert actually testified that it was not appropriate medicine to have admitted that baby girl for observation overnight, because the insurance company never would have approved the room charge of $140. Apart from the fact that what is appropriate medicine is completely irrelevant to whether the patients insurance will pay the charge, the great tragedy is that no one bothered to tell the babys family they could have her admitted but might have to pay the room charge of $140 themselves. The verdict was $750,000. In another case, an obstetrician defense expert testified that he would not have given the mother the option of deciding whether to have an earlier C-section, which he admitted would have saved her child, because permitting patients to make that decision might result in thousands of children being hospitalized for a day or two longer following delivery every year, resulting in unnecessary expense, in order to just save a few babies lives. He failed to appreciate his exclusive duty was to his patient, and not the profitability of the national health care system. Following his deposition the defense paid the settlement demand. In the next issue, we will discuss how the failures of the medical profession in Ohio to adopt a mandatory trauma system is the result of competition for business and profit among hospitals, and how many patients die needlessly every year as a result. One prominent trauma physician is on record saying (Ohios) voluntary trauma system doesnt work because of greed. No one voluntarily gives up patients. The fact that a patient may be better served by being transferred to a trauma center does not matter to the hospital trying to keep its beds filled. Our next issue will also share the case of a healthy 20-year-old who suffered an accidental gunshot wound and was essentially allowed to bleed to death under the care of a resident rather than be transferred to a certified trauma center. This case, tried in May 1997, settled on the third day of trial for $2,500,000.
At Allen Schulman & Associates, we pride ourselves on helping everyday people who, through no fault of their own, find themselves victims of someone elses carelessness. While compensation never substitutes for lost health, nor the death of a loved one, it does provide a measure of security and solace for the future, and, also, acts as a deterrent against reckless conduct.
Last year, we were privileged to represent two families whose lives were shattered by the unconscionable negligence of a railroad company. One case resulted in the largest verdict ever recorded in Union County (Marysville), Eleven Million Five hundred Thousand Dollars ($11,500,000.00), while the other restored the financial security of a teenage daughter following the tragic deaths of her mother and father.
In both cases, a railroad crossing with a history of crashes was the cause of these tragedies. Very few Ohioans are aware of the fact that our state has one of the highest injury and death rates at railroad-highway crossings. This outrageous record is directly attributable to the railroad industrys contempt for public safety. After successfully representing clients in these cases, it is clear that if the industry devoted one-tenth of the time and resources it spends on defending these suits on improving these dangerous crossings, this horrible carnage would substantially diminish. Unfortunately, the railroad industry prefers fighting claims to promoting public safety.
Hopefully, the message of substantial verdicts from our jury system will promote this needed change.
Recently, our firm was privileged to represent a woman whose life was turned upside down following a car-truck crash. While on her way to pick up her granddaughter at day care, a 5-ton dump truck turned directly in her path causing her to lose control of her car and careen down an embankment. Her injuries were catastrophic - two broken and shattered legs. After six surgeries, followed by months of rehabilitation, she was released from the hospital. She will never walk normally again.
Although we were able to settle her claim against the trucking company for $1 million, this case highlighted a disturbing trend - the failure of employers to adequately investigate the driving history of their employees. Shockingly, this trucker's driving history revealed a 10-year record of traffic violations. From the sworn testimony of this Defendant came the following exchange:
Even more outrageous was the fact the employer never obtained this trucker's entire driving record - only the 3 years preceding his employment!
When questioned about this oversight, the employer admitted:
While the trucking company's insurance company paid $1 million to settle this tragic claim, that is little solace to the woman who will carry the pain and injury for the rest of her life.
Employer's beware!!! Check your driver's complete record so as to prevent these tragedies before they happen.
EVERY PARENT'S NIGHTMARE
Unfortunately, their terrible nightmare was made worse by the indifference of their own automobile insurance companies.
After the death of their 18-year old son, the family sought compensation from their own insurance companies, since the drunken driver was uninsured at the time of this horrific crash. After thoroughly documenting the family's loss, their own insurance carriers summarily rejected the family's claims without so much as an investigation. After months of inaction, the family requested our assistance. We immediately realized these companies were violating the legal mandate to treat their policyholders in good faith. After the lawsuit was filed and the deposition testimony of the insurance officials taken, these companies settled this tragic case for $1.8 million.
Once again, we hope that by aggressively prosecuting these kinds of cases, giant corporations will change their abusive tactics and, in the future, will treat their policyholders with the respect they deserve.
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