Malpractice and negligence attorneys in Ohio ? lawyers on your side

On May 15, 1989, 38-year old Gracie Kennard, wife and mother of two children, presented to the hospital with complaints of rapid heartbeat and shortness of breath. Gracie was sent home but returned later that night with her husband who described what he felt was "seizure activity" along with fever, shortness of breath, and rapid heartbeat. Gracie was placed on a heart monitor which showed a heart rate of close to 150 bpm. While on the monitoring floor, Gracie began screaming and acting strangely. She had previously been admitted to the hospital in August 1989 for psychotic behavior including auditory hallucinations but was released and seemed to be doing well.

Due to Gracie's behavior during the May hospitalization, her treating physician, defendant Dr. Stanley Benjamin, along with Gracie's treating psychiatrist, Dr. Bjornstad decided to transfer Gracie to the psychiatric floor where no heart monitor was available. Gracie's heart problems were ignored and studies, which would have revealed the condition, which ultimately led to her death, were not performed. Accordingly, on May 17, 1989, hospital staff discovered Gracie collapsed on the floor and she was subsequently pronounced dead as a result of cardiac arrhythmia.

A medical malpractice lawsuit was initiated against Dr. Benjamin alleging he fell below accepted standards of care in failing to recognize Gracie's heart problem. The defense contended that because of Gracie's psychotic episodes, there was no choice but to transfer her to the psychiatric floor where no heart monitor was available. The defense further argued that no monitor was necessary insofar as psychotic patients often suffer from fast heartbeats.

On January 31, 1992, a jury found in favor of Gracie and her family, specifically they found that Dr. Benjamin was negligent in failing to keep Gracie on the cardiac floor and in dismissing her symptoms as being a result of her psychotic behavior. The jury further found that Dr. Benjamin was negligent in failing to properly order tests, which would have revealed Gracie's heart enzymes were elevated, indicating of a cardiac problem.

Tiffany Nicole Turner suffered severe brain damage following administration of her childhood DPT vaccinations. After her first vaccination, Tiffany suffered several seizures. Despite this fact, her physicians continued with Tiffany's vaccinations.

Tiffany's parents retained Allen Schulman to represent them in a case against Tiffany's physicians. Schulman argued that Tiffany's seizures contraindicated further vaccinations. Moreover, Schulman argued that Tiffany's first physician was negligent in failing to advise other physicians of her reaction. The Turner's settled with the physicians.

On October 12, 1986, 7-year old Derek Wilson was playing with neighborhood boys using a toy called the "Franklin Power Hit Batting Tee". The toy was designed to allow a child to practice hitting a ball. An elastic string was attached to the ball and then anchored to a metal stake, which would be driven into the ground at the base of the tee.

Apparently, when Derek was outside playing with the neighborhood boys, he pulled on the elastic string and the metal stake flew out of the ground and impaled itself in Derek's forehead causing left side paralysis and other neurological problems.

A products liability lawsuit was initiated against Franklin Sports Industries and its distributor, Childworld dba Children's Palace. The suit alleged that the Franklin Power Hit Batting Tee was a defective product and unreasonably dangerous for its intended use. Specifically, the Wilson family alleged it was foreseeable that children of tender years would play with the toy in such a manner that the metal stake would become dislodged from the ground and become, in effect, a guided missile, when pulled out of the ground by the elastic string.

The defendants contended that Derek was using the product in a manner not intended and further that Derek's parents, as well as the neighbor boys parents, were negligent in the supervision of the children.

Fortunately, Derek's left side paralysis resolved although he continued to suffer from periodic headaches, which were from moderate to severe in intensity.

Half way through trial, the defendants elected to avoid a jury decision and settled the case.

When mother-to-be, Evelyn Gatlin, presented to the hospital to deliver her baby, she had no idea that following the delivery, her baby daughter, Morgan Vance, would be left with permanent paralysis in her left arm.

The obstetrician who delivered Morgan failed to recognize that Morgan had unusually large shoulders thus making it impossible for her to travel through the birth canal as would occur with a normal vaginal delivery.

The defendant, Dr. Fitz, in failure to recognize this situation literally "pulled" her through Evelyn's pelvis causing nerve damage to Morgan's left arm resulting in what is known as a brachial plexus injury.

The case proceeded to trial wherein the defense argued that Dr. Fitz did not breach the standard of care in failing to recognize that Morgan had unusually large shoulders and would not be able to proceed through a normal vaginal delivery. The Vance family argued to the jury that this condition should easily have been recognized. Had it been properly recognized, a C-section would have been performed thereby avoiding the severe and permanent injury to Morgan Vance.

After a 5-day trial and 11 hours of deliberations, the jury returned a verdict finding that Dr. Fitz was negligent by failing to recognize and treat the condition commonly referred to as shoulder dystocia, thus resulting in Morgan's permanent paralysis.

John Popick was severely injured on January 13, 1978 when scaffolding manufactured by Louisville Ladder Company collapsed beneath him. Mr. Popick suffered brain damage, broken ribs, and significant hearing loss. The case was tried by Allen Schulman and others in the Carroll County Court of Common Pleas. The jury awarded the Popick family.

Delano Jackson was a painter by trade but not an ordinary painter. Delano worked for defendant Master Painting and Sheeting Co. of Youngstown, Ohio, a contractor that provided painting services for electrical substations for factories such as LTV Steel in Canton, Ohio.

On June 24, 1988, Delano appeared for work as he did everyday. As part of the safety procedures in place, LTV provided "spotters" to tell painters when they were getting close to dangerous high voltage areas.

On the day he was injured, Delano was painting "holidays" which are spots that were missed when the initial coat of paint was put on the electrical substation. Unfortunately, on that fatal day, LTV failed to provide spotters to protect the painters. As a result, Delano came into contact with a high voltage line which caused catastrophic injuries including the loss of both legs and his left fore arm and burns over 50% of his body. Doctors at Children's Medical Center in Akron, Ohio did not expect Delano to live, let alone walk again but after thousands of hours of painful therapy, he was able to walk 20 yards with the use of artificial limbs.

The Jackson family brought suit against LTV and Delano's employer alleging they were negligent in failing to provide spotters to prevent the exact type of incident that led Delano to come in contact with the 13,800 volts of electricity. When he was shocked, the lights in the entire plant went out and Delano literally burst into flames.

After the second day of trial, the defendants agreed to settle the case for the sum of which, at the time, was the largest settlement in Stark County history.

On the evening of April 1, 1990, Teresa Hicks and her daughters, Melissa and Kimberly, were travelling down a Union County, Ohio roadway when they collided with a Conrail train at a railroad crossing which was unequipped with flashing lights, gates or other automatic warning devices.

Ironically, another crash at the same crossing had occurred at 4:00 p.m. that same day when another vehicle collided with the same train engine.

Teresa Hicks suffered a broken ankle and Melissa Hicks suffered a broken back. However, Kimberly Hicks was catastrophically injured and was rendered quadriplegic as a result of her injuries.

The Hicks family brought suit against Conrail alleging the railroad crossing was unreasonably dangerous for the motoring public and that Conrail had failed to take appropriate steps to alleviate the dangerous crossing. Prior to trial, the railroad settled with the Hicks family. The amount was based on the cost of providing proper medical care for Kimberly for the remainder of her life as well as compensating Melissa and her mother for their fractures and subsequent pain and suffering.

On January 19, 1992, Niles Gun Show admitted two minors to the Canton Civic Center where the company was holding a gun show. Prior to admitting the boys, the show collected a three-dollar admission fee from each and stamped their hands. While the show had a policy prohibiting minors from entering the show unaccompanied by adults, no one questioned the boys about their age or asked for their I.D.

Inside the show, the boys found piles of unsecured firearms. Due to the lack of security, they decided to steal from the vendors. After several trips in and out of the show, they counted three handguns and several other weapons. The boys also purchased hollow point ammunition from a vendor in violation of federal law.

The same night, the boys stole a car and went on a joy ride, knocking over garbage cans. Greg Pavlides observed this activity from his house and decided to follow the boys in his own auto. When the boys crashed, Mr. Pavlides approached their car. The boys aimed one of the guns at Mr. Pavlides and fired, striking him in the chest. The boys also shot another bystander in the head. As a result, Mr. Pavlides was paralyzed from the waist down.

Allen Schulman and Associates filed an action against the boys and the gun show. The complaint asserted that the gun show negligently failed to exercise reasonable control over firearms in its possession, thereby allowing unauthorized persons, including the boys to obtain possession of these dangerous instrumentalities.

The trial court dismissed the case, finding that the gun show had no duty to prevent third parties from committing criminal acts. Mr. Schulman appealed this ruling to the Fifth District Court of Appeals. While admitting the gun show did not owe a duty to control the boys, Schulman argued that the gun show owed a duty to exercise reasonable control over firearms exhibited at its show, so as to prevent injury to third persons. The Court of Appeals agreed and reversed the trial court's decision.

On remand, the jury found the gun show liable, awarding compensatory damages and punitive damages. Following this verdict, Schulman successfully defended appeals to the Fifth District and Supreme Court of Ohio.

Nedra Lovell brought suit against her chiropractor, W. Thomas Klaserner, after suffering a stroke. Ms. Lovell suffered the debilitating stroke after Dr. Klaserner adjusted her spine on December 1, 1989.

The case was tried before Judge Roger G. Lyle in the Tuscarawas County Court of Common Pleas. The jury returned a verdict against Dr. Klaserner.

Cossette Krause, a child, incurred brain damage after administration of her DPT vaccinations. These vaccinations were administered despite contraindications to administering the vaccination. Allen Schulman & Associates obtained an arbitration award. The family subsequently settled with the treating physicians.

On a beautiful July day in 1990, insurance broker Ron Lowry was driving home when 16-year old Jason Domonkas ran a stop sign and broadsided Ron's car. The impact of the crash threw his car against a construction crane and the vehicle then rolled 15 feet down an embankment landing on its top. Both defendant Jason Domonkas and Ron were insured by Motorists Insurance.

An insurance broker, Ron was prudent enough to purchase ample insurance coverage in the form of a $500,000 underinsured motorist policy as well as a $1,000,000 umbrella policy.

As a result of the crash, Ron suffered a permanent brain injury. Prior to the crash, Ron was a vital, assertive, industrious person but as a result of his injuries, he suffered difficulty with attention, concentration and memory.

Defendant Motorists offered to pay the $100,000 available under defendant Domonkas' policy, but disputed that Ron had suffered a permanent brain injury, Motorists refused to make payment under the Lowry's policy thus forcing the Lowry family to file a lawsuit against their own insurer.

Following a 3-day trial, the jury agreed that Ron had suffered a permanent and disabling brain injury and awarded the Lowry family the amount available under their underinsured motorist and umbrella policies. The jury was instructed that, regardless of the amount of compensation they believe the Lowry family deserved, this was the most they could award pursuant to the policy limitations.

On the morning of May 6, 1994, Thomas Gollihue was driving a Laidlaw sanitation truck for his employer south on Currier Road in Union County. His fellow employee, Bernard Garrett, was riding as a passenger. Currier Road runs parallel with railroad tracks owned by Conrail, the tracks located to the west of Currier. When Gollihue reached Converse Road, which intersected perpendicular to Currier, he attempted to turn right toward the railroad tracks. Because the railroad tracks crossed Converse very close to the intersection, Gollihue was unable to complete the turn before his front tires crossed the tracks. Gollihue's truck was immediately hit by a Conrail train, killing Garrett and severely injuring Gollihue.

Gollihue retained Allen Schulman in an action against Conrail. Schulman argued that the railroad had failed to install adequate warnings at this dangerous crossing. Several accidents had occurred at this particular crossing in the preceding years. Despite this fact, the crossing was marked by a cross buck only. Schulman maintained that, had the crossing been marked with lights or crossbars, the crash would have been avoided. Schulman also sought punitive damages, alleging Conrail refused to voluntarily upgrade railroad crossings because such action would decrease profits.

The case was tried in conjunction with the case filed by Bernard Garrett's estate. The jury returned a verdict in favor of Gollihue and the Garrett estate, awarding compensatory damages and punitive damages.

Conrail appealed the case, claiming that federal law precluded the jury from finding the railroad negligent. Specifically, Conrail argued that because the Secretary of Transportation approved funds to help install the cross-bucks at the Converse Road crossing, the Secretary must have determined the cross bucks adequate to protect motorists. The appellate court agreed with Gollihue, holding that federal law preempted state tort law only if the Secretary of Transportation expressly found the crossing devices adequate for a particular crossing.

A jury verdict in underinsured motorist claim affirmed on appeal. Plaintiff, manager of service station, was pinned between frame and bed of dump truck at garage for service when bed closed on her as she began repairs. The owner of truck failed to advise Plaintiff of need to prop bed up when doing repairs.

Gerald Friedman v. Joe Marks Concrete

On May 8, 1992, young Gerald Friedman, an electrician, was operating a rolling lift at a construction site. An employee of defendant, Joe Marks Concrete, had removed metal grates which covered exposed holes on the floor of the construction site. While operating the rolling lift, plaintiff rolled into one of the exposed holes causing the lift to capsize. Mr. Friedman suffered crush injuries to both of his feet and right ankle and incurred medical and rehabilitation expenses in excess of $10,000.

A negligence lawsuit was initiated against Joe Marks Concrete alleging the removal of the grates over the holes on the floor of the construction site and/or the failure to advise anyone that the grates had been removed was negligent and the cause of Gerald's injuries. Joe Marks Concrete argued at trial that Gerald was negligent in failing to inspect the floor of the construction site before operating the rolling lift. He also argued he was negligent in failing to maintain a proper lookout, thus causing himself to roll into the hole and capsize the lift resulting in his injuries. The medical testimony at trial indicated Mr. Friedman's injuries were permanent and in all probability the bones in his feet would deteriorate to such a condition that he would be unable to walk on uneven surfaces which electricians normally encounter.

On May 18, 1995, a unanimous jury found in favor of Mr. Friedman and against Joe Marks Concrete and awarded him damages. The jury also awarded Mr. Friedman's wife on her loss of consortium claim.

Fidelholtz v. Peller

On February 7, 1991, Bernice Fidelholtz presented to a surgeon for examination of a painful swelling in her lower right leg. The surgeon removed the mass and sent it to Dr. Marino Ong, a pathologist, for examination. Dr. Ong prepared several slides from this sample. One of these slides caused Dr. Ong concern because he thought it might show malignancy. He forwarded surgical slides to a pathologist in Cleveland for a second opinion, but omitted the slide that caused him the most concern. The second pathologist found no malignancy and, therefore, Dr. Ong diagnosed benign nodular fascitis. Some time later, Ms. Fidelholtz discovered the lump was indeed malignant, requiring amputation of her leg. Ms. Fidelholtz then sought the assistance of Allen Schulman and Associates.

Mr. Schulman filed a medical malpractice action against her physicians for failing to diagnose the malignancy. Shortly before trial, he negotiated a settlement of Ms. Fidelholtz' claim against the Cleveland pathologist. Dr. Ong refused to settle, asserting that neither he nor the Cleveland pathologist had been negligent in their review of Ms. Fidelholtz's slides.

The jury returned a verdict in favor of Ms. Fidelholtz. Dr. Ong subsequently moved the court for judgment notwithstanding the verdict, seeking a reduction of the jury's award. Dr. Ong's based his motion on Ohio Revised Code Section 2307.32(F), which permits defendants to deduct from jury award monies paid by other persons liable in tort. Despite Dr. Ong's prior testimony that the Cleveland pathologist had not been negligent, Dr. Ong asserted that the pathologist was a "person liable in tort" for purposes of calculating damages owed to the Fidelholtz family. The trial court agreed and ordered a reduction of the jury's award. The Fifth District Court of Appeals upheld this decision.

Mr. Schulman and his associate, Christopher J. Van Blargan, filed an appeal with the Supreme Court of Ohio, seeking reinstatement of the award. In their brief, Schulman and Van Blargan urged the Court to overrule its recent decision in Zeigler v. Wendel Poultry Serv., Inc, a case which permitted an automatic setoff for monies received from other defendants. Schulman and Van Blargan argued that Revised Code Section 2307.32(F) requires a factual determination of whether the settling defendant was a person liable in tort. Finally, they asserted that the Cleveland pathologist could not be considered a person liable in tort due to Dr. Ong's admission that the pathologist was not negligent.

The Supreme Court of Ohio agreed, reversing the lower courts' rulings and reinstating the jury's award.

Lavenburg v. Moss

On June 8, 1997, the decedent, Glenn Lavenburg, was fatally injured as a result of a motorcycle-auto collision. The tortfeasor had policy limits of $100,000 in liability coverage through Nationwide Insurance. The Lavenburg family had procured underinsured motorist coverage in the sum of $300,000 with Motorists Mutual Insurance Companies. After set-off of the tortfeasor's limits, Motorists tendered $200,000 in underinsured motorist coverage.

On behalf of the estate, Allen Schulman and Tim Saylor obtained the commercial auto policy of the late Glenn Lavenburg's employer, Union Metal. Pursuant to Scott-Pontzer v. Liberty Mutual (1999) 85 Ohio St. 3d 660, Schulman and Saylor pursued an underinsured motorist claim with The Hartford, the company who insured Union Metal. After filing suit, the matter was settled with the Hartford.

Courtney v. Albex Aluminum, Inc.

On January 7, 2000, 37 year old David Courtney, husband and father of three young children, was crushed to death while operating a 1968 Kaiser Jeep that had been modified to hydraulically lift large trailers containing scrap aluminum. At the time of his death, Mr. Courtney was working for his employer, Albex Aluminum, Inc. and was operating the 1968 Kaiser Jeep to hydraulically lift a trailer of scrap aluminum weighing approximately 50,000 pounds. While the trailer was in a fully raised position, the frame of the Jeep broke, allowing the full weight of the load to slowly crush Mr. Courtney.

Allen Schulman and Brian Zimmerman filed suit on behalf of David Courtney's family against Albex, RVM Industries, Inc. and Kagey's Body Shop. RVM Industries, Inc. was the parent corporation of Albex, and the evidence indicated that RVM participated in the decision to purchase the 1968 Kaiser Jeep. After Albex and RVM purchased the Jeep, Albex brought the vehicle to Kagey's Body Shop to install the hydraulic lift. Albex subsequently claimed it had requested Kagey's reinforce the Jeep's frame, a claim Kagey's denied.

The evidence in the case demonstrated that the defendants knew, prior to David Courtney's death, that the 1968 Kaiser Jeep was not a suitable and safe vehicle to be used as a platform to hydraulically lift the heavy loads of scrap aluminum at the Albex facility. The manufacturer's tag on the Jeep's dashboard indicated that the Jeep's maximum payload was 24,620 pounds. The evidence also demonstrated that Albex and RVM knew that injury or death was substantially certain if Albex employees used the 1968 Kaiser Jeep for this purpose, but nonetheless required Mr. Courtney to use the truck in that manner.

The case proceeded to trial in the Stark County Court of Common Pleas. After 2 days of trial, the defendants agreed to settle the case.

American States Insurance Co. v. Sovereign Chemical Co.

American States issued a commercial insurance policy to Sovereign Chemical, which was effective from February 20, 1995 through February 20, 1996. The policy provided coverage for commercial property, general commercial liability and commercial inland marine coverage.

On January 17, 1996, an employee of Sovereign filed suit against the company alleging that he was wrongfully discharged. The complaint contained nine counts.

On April 12, 1996, Sovereign gave notice of the litigation to American States, demanding that American States provide legal representation and indemnification for the allegations contained in the complaint pursuant to the terms of the insurance contract. Despite this pending litigation, American States failed to furnish any representation to Sovereign for nearly two months, and on June 6, 1996, informed Sovereign that it was denying all coverage and defense costs.

On July 12, 1996, American States agreed to assume the defense of Sovereign with regards to the claim of invasion of privacy, alleging that the privacy claim was the only claim that obligated American States to defend and indemnify. On August 30, 1996, American States conceded that it had the obligation to defend the entire litigation, but insisted on replacing Sovereign's attorney with an attorney of its choice. Sovereign was not comfortable with changing counsel at such a late date and expressed concern that this change may have an adverse effect on settlement negotiations.

In the spirit of cooperation, Sovereign proposed to retain the counsel who had been handling the case from its outset and forward fees at a rate that American States would pay its own defense counsel. Sovereign would then pay any additional legal fees which would, in essence, leave American States in the same position it would have been in had it assumed the defense from the start of the litigation. American States rejected this compromise and refused to honor all defense and indemnity obligations.

Sovereign retained Allen Schulman, who pursued claims for breach of contract, bad faith and punitive damages against American States. On May 10, 2001, a jury returned a verdict for compensatory damages and punitive damages.

Lawyer welcomes new vaccine,
but wishes it had come sooner

As printed 6/10/98 in the Canton Repository.

CANTON- A local attorney who represented families left disabled by side effects from whooping cough vaccines is glad the federal government has approved a new vaccine that is suppose to be safer.

But Allen Schulman Jr. said American drug companies should have been manufacturing it long ago. Similar vaccines have been used abroad for 20 years, he said.

"The new vaccine is welcome, and should be positive for all parents," said Schulman, who practices in Canton and Columbus. "It's just too bad that a number of children had to suffer from injuries and side effects while waiting for drug manufacturers."

On Wednesday, the U.S. Food and Drug Administration approved a long-awaited new whooping cough vaccine,- Connaught Laboratories"- Tripedia- to become the first alternative for parents worried about the side effects from vaccines now being used.

Studies showed Tripedia was at least 80 percent effective at preventing whooping cough while causing fewer cases of fever, irritability and swelling. Existing shots also can cause very rare but serious complications, seizures or brain damage.

The "acellular" vacciner uses only part of the whooping cough bacterium instead of the entire thing, making it safer. Schulman said that vaccine was first developed in Japan. In 1984, a Jackson Township family Schulman represented settled a medical malpractice lawsuit against four doctors, Schulman said.

Larry and Claudette Krause claimed their then 7-year old daughter, Cossette, suffered irreparable brain damage from the vaccine she received as an infant. She was left unable to see, walk or otherwise function normally.

Schulman said he settled similar cases, including two in Columbus. In Youngstown an arbitration panel awarded money to a family he represented.

One of the arguments Schulman made was that a safer vaccine was being used outside the United States, and should have been in use here.

Schulman argued that drug companies didn't develop it sooner because they didn't want to pay royalties to Japanese companies that developed it first.

Home | Practice Focus | Attorney Profiles | Verdicts & Settlements
Newsletter | Co-Counsel | Contact Us