News - Becker & Mishkind Co., L.P.A.

MEDICAL ERRORS DURING LABOR CAUSE NEWBORN BABY PROFOUND BRAIN INJURY RESULTING IN LARGEST VERDICT IN DAYTON, OHIO HISTORY

Michael Becker of the law firm of Becker & Mishkind Co. L.P.A. recently obtained what is believed to be the largest verdict in Montgomery County, Ohio history and certainly the largest medical malpractice verdict in the history of the county. On March 20, 2008 a Dayton, Ohio jury returned a verdict of $8,699,000.00 to compensate for the injuries caused by the negligence that occurred during the labor and delivery of a newborn baby. The obstetrician responsible for keeping the mother and her baby safe during labor and delivery failed to follow the rules for managing a disease known as preeclampia. Preeclampsia is a disease that only occurs during pregnancy. Preeclampsia, pregnancy-induced hypertension (PIH), and toxemia are essentially interchangeable terms. The defendant obstetrician failed to act prudently in managing her pregnancy and permitted the condition to progress to a state of eclampsia. The eclampsia caused placental abruption, the separation of the placenta from the uterine lining. This condition was permitted to occur despite indications that mom and the baby were at risk of harm and as a result of the failure to follow the rules for management of a mother during labor her unborn baby suffered irreversible brain damage.

Had the defendant doctor acted prudently and reasonably the harm and damage caused to the baby was entirely preventable. A jury in Dayton, Ohio heard the evidence during this 2-week trial and found in favor of the parents and child and rendered a verdict to compensate for the harm and loses suffered and the costs to be incurred for the care of their child in the sum of $8,699,000.00.

Howard Mishkind admitted to practice before the United States Supreme Court

On January 16, 2008, Howard Mishkind, a principal in the law firm of Becker & Mishkind Co., L.P.A., was admitted to the Bar of the Supreme Court of the United States. As a member of the Bar, he is eligible to argue before the United States Supreme Court. His admission to the United States Supreme Court came as part of an admission process which involved an invitation by the Dean of Cleveland-Marshall College of Law. Mr. Mishkind was part of a group of 12 graduates of Cleveland-Marshall College of Law that were sponsored by the Dean of the law school. Mr. Mishkind submitted an application which was reviewed by the Court and his credentials to be admitted before the highest court in the United States, were deemed appropriate.

2008 Super Lawyers

Howard Mishkind and Michael Becker were again chosen for inclusion as Ohio Super Lawyers for the year 2008. Only 5% of lawyers in the state are named. This is not a popularity contest and is based upon considerable polling and peer evaluation efforts with detailed research that evaluates each candidate based on 12 indications of peer recognition and professional achievement. The process to be named a Super Lawyer involves checks and balances that produce a well-rounded and diverse listing of attorneys. There are a series of safeguards built into the database to prevent lawyers from campaigning their way onto the list or engaging in any sort of cooperative voting. The objective of Super Lawyers is to create a list that is useful to consumers of legal services and is a credible rating system to be used in choosing legal counsel. Inclusion on this list is not a guarantee of quality, but designation as a Super Lawyer is one piece of information that consumers can consider when searching for a lawyer.

Moffitt vs. Auberle 167 Ohio App. 3d 120 a doctor may be liable for negligent misrepresentation.

Moffitt vs. Auberle 167 Ohio App. 3d 120 a doctor may be liable for negligent misrepresentation. The claim for negligent misrepresentation will exist where a doctor’s office fails to provide documentation to the patient’s employer and the patient relied on the representation that the physician would provide documentation to a patient’s employer. The physician’s office failed to provide documentation about the patient being unable to return to work and the patient was fired by her employer for failing to return.

The court held that liability against a doctor for negligent misrepresentation does exist in Ohio for failing to exercise reasonable care or competence in supplying correct information where there was a duty to provide information and a reliance by the patient on such representation.

Therefore, a physician or hospital may be liable to a patient for negligence that doesn’t necessarily involve medical treatment, but does involve negligent communication of information about the patient’s medical condition that results in injury to the patient (in this case economic injury).

Please note that Rule 10 affidavit requirements will probably be amended as of July 1, 2007 in the following respects:

1. A motion to extend the period of time to file an affidavit of merit (that is properly filed with the complaint) shall be granted for good cause for a period of 90 days. The 90-day period may be extended by the court if the defendant or a non-party has failed to cooperate with discovery sufficient to provide the affidavit of merit.
2. Good cause to extend the period is now defined by the following:
   1. A statement of the information necessary in order to obtain an affidavit of merit.
   2. Whether the information is in possession of the defendant or a third party and what efforts were taken to obtain the information prior to filing suit.
   3. The type of discovery that would be necessary to obtain the information (i.e., deposition, subpoena, request for production).

There is a catchall provision that the court can consider good cause under the any other facts or circumstances relevant to the ability of the plaintiff to obtain an affidavit of merit (i.e., insufficient time to provide the information to an expert to obtain the affidavit).

The amendment to Civ. R. 10(D) also indicates that a dismissal of the complaint for failure to attach an affidavit operates as a failure otherwise than on the merits. Thus, if a complaint is dismissed without an affidavit, the case can be refiled within one year of its dismissal.

The additional change to the rule is that an affidavit filed with the complaint that is determined by the court to be defective pursuant to Civ. R. 10(D)(2)(a) which requires that the affidavit be signed by an expert qualified under Evid. R. 601(D) that he has reviewed the medical records and is familiar with the standard of care and that his opinion is that the standard of care was breached by one or more of the defendants and the breach caused injury to the plaintiff.

If the court determines that any one of these aspects of the affidavit is deficient, the court shall grant plaintiff a reasonable period of time not to exceed 60 days to file an affidavit curing the defect. If that affidavit is not filed, then the case shall be subject to dismissal and again the dismissal is otherwise than on the merits.

While the constitutionality of the affidavit requirement still is questionable and subject to challenge, this amendment to the affidavit requirement provides a little bit more clarity as to the circumstances where a motion to extend the time should be granted and the reasons for same, as well as the implications of a complaint being filed that does not have an affidavit or is deficient with regard to its affidavit.

Michael Becker & Howard Mishkind have been selected again as 2007 Ohio Super Lawyers
Michael Becker & Howard Mishkind have been selected again as 2007 Ohio Super Lawyers and will be part of the 5% of Ohio attorneys that receive the honor of being recognized as 2007 Ohio Super Lawyers. The recognition will be published in the January, 2007 issue of the Cincinnati Magazine, Northern Ohio Live and Ohio Super Lawyer Magazine.

Medical Malpractice Premiums
A recent article indicates that the American Medical Association conducted a survey of self-employed doctors that indicates that insurance premiums were lower in 2000 than in 1986, contradicting the widespread belief that premiums have risen steadily. This article is from Malpractice Premiums & Physicians Income: Perceptions of a Crisis Conflict with Empirical Evidence, 25 Health Aff. 750 (2006).

Neurosurgeon has suspension dismissed
Many of you may be familiar with Dr. Lustgarten, a neurosurgeon that had his privileges suspended by the North Carolina Medical Board for testifying in a medical negligence case. Dr. Lustgarten was successful in dismissing the suspension based on the fact that he had a good faith evidentiary basis for his testimony when he testified that a notation in the medical records was faulty. Therefore, he was accused of giving false or unethical testimony.

Prenatal Anatomy Lesson May Avert Dystocia Suit

As Of December 22, 2004, The Law In Ohio As To How Much Healthcare Providers May Charge For Copies Of Medical Records Has Changed
12/22/2004

As of December 22, 2004, the law in Ohio as to how much healthcare providers may charge for copies of medical records has changed:

· The new law extends to December 31, 2008 the existing law governing fees for copies of medical records.

· The new law changes the fees that healthcare providers and medical records companies may charge for copies of medical records. The fees differ, depending upon who requests the copies.

· The new law requires the Ohio Director of Health to adjust fees in accordance with the Consumer Price Index not later than January 31, 2006, and requires that the Department of Health make a list of the adjusted fees available on its website.

The previous law in Ohio established a charge that was the same regardless of who requested the copies. The previous cost was:

A search fee of $15.00; plus
Per page copy charges for paper records:
· Pages 1 through 10: $1.00 per page.
· Pages 11 through 50: $.50 per page.
· Pages 51 and higher: $.20 per page.
Plus
· Per page copy charges for records not maintained on paper: the actual cost of making the copy.
Plus
· The actual cost of any related postage.

The New Law creates a distinction between a patient's "personal representative" and a patient's "authorized person."

· A patient's "personal representative" means a minor patient's parent or other person acting in loco parentis, a court-appointed guardian, a person with durable power of attorney for health care for a patient, the executor or administrator of the patient's estate, or the person responsible for the patient's estate if it is not probated.

· A patient's "authorized person" means a person to whom a patient has given written authorization to act on the patient's behalf regarding the patient's medical record.

The new schedule is:

If copies are requested by the patient or the patient's "personal representative"

Search Fee: None
Paper Records:
First ten pages: $2.50 per page
Pages 11 through 50: $.51 per page
Pages 51 and higher: $.20 per page
Data Not Recorded on Paper: $1.70 per page
The actual cost of any related postage: Yes

Anyone other than the patient or the patient's "personal representative" - i.e., the patient's "authorized person" or the patient's insurance company:

Search Fee: $15.35
Paper Records:
First ten pages: $1.02 per page
Pages 11 through 50: $.51 per page
Pages 51 and higher: $.20 per page
Data Not Recorded on Paper: $1.70 per page
The actual cost of any related postage: Yes

The new law also makes it clear that, unless agreed to in writing, the new fee schedule applies to copies that an insurance company requests from a healthcare provider.

The new law retains the existing requirement that one free copy must be provided to the Ohio Bureau of Worker's Compensation, the Ohio Industrial Commission, and the Ohio Attorney General.
The old law required that a healthcare provider had to provide the patient or the patient's representative one free copy if the copy is necessary to support a claim for Social Security benefits and if a copy of the claim accompanied the request for the copy of the medical records.

New law continues this practice - but only if the patient requests the copy or if the patient's "personal representative" requests the copy. A patient's "authorized person" is not entitled to a free copy to support a claim for Social Security benefits.

Can Healthcare Providers Negotiate Different Fees for Copies?
The new law makes it clear that healthcare providers can enter into contracts with patients, "personal representatives," "authorized persons," and insurance companies to make copies for fees that differ from those in the fee schedule. If an insurance company does not negotiate in writing for a different fee, then the new fee schedule applies.

Mike Becker Keynote Speaker at 22nd Annual Conference in Hawaii in January, 2006
12/05/2005

Mike Becker has been asked to be a keynote speaker at The 22nd Annual Conference on Obstetrics, Gynecology, Perinatal Medicine, Neonatology and the Law. The Conference will take place in Hawaii in January, 2006. Some of the topics Mr. Becker will be speaking on will include perinatal medicine, expert witnesses, disclosing errors to patients and informed consent. Register Here!

Mike Becker & Howard Mishkind Named as Ohio "Super Lawyers"
08/24/2005

Attorneys Mike Becker & Howard Mishkind have been selected as 2006 Ohio Super Lawyers. Only 5% of attorneys receive this honor each year. The selection procedure includes peer nominations from 35,000 lawyer ballots, a blue ribbon panel review process and independent research on candidates. Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify Ohio Lawyers who have attained a high degree of peer recognition and professional achievement. Ohio Super Lawyers Magazine and Cincinnati Magazine will publish the list of all Super Lawyers on December 27, 2005.

Mike Becker is Inducted into The Inner Circle of Advocates
08/01/2004

The Inner Circle is an invitation-only group, limited to 100 lawyers of excellent character and integrity, representing people throughout the United States. To qualify, members must have tried at least 50 personal injury jury trials and received at least one million-dollar jury verdict in a personal injury or wrongful death case. Most members have won many multimillion dollar verdicts for their clients.

The Inner Circle promotes the highest standards of representation, integrity, and honor. Outstanding trial lawyers with 30-plus years of experience in the handling of claims and litigation share their experience, skills, and knowledge.

As of July 1, 2005 New Law Makes Medical Negligence Claims More Expensive and Difficult to Pursue.
07/01/2005

Effective July 1, 2005 Civil Rule 10(D) of the Ohio Rules of Civil Procedure has been amended to include the following relevant language:

Ohio Civil Rule 10(D) Attachments to pleadings.

(2) Affidavit of merit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in section 2305.113 of the Revised Code, shall include an affidavit of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish evidence. The affidavit of merit shall include all of the following:

(i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable standard of care;
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.

(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit.

(c) An affidavit of merit is required solely to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of impeachment.

This requirement is not new in Ohio and has been the subject of litigation in the past. Similar requirements have been attacked on a constitutional basis as being in violation of the Ohio and Federal Constitutions as violative of the equal protection of the law provision of our Constitution. The requirement of an affidavit as discussed above is not required in any other type of injury claim. Thus, an individual injured due to the negligence of a defective product, a negligent driver or an unsafe condition caused by a defendant that is not a medical care provider, can file a complaint under Civil Rule 10 without meeting the above requirements.

There is little, if any, actual evidence to support the suggestion by certain interested groups that this amendment is necessary to combat the alleged malpractice crisis that has been the focus of much debate throughout Ohio and nationally. With recent changes in the law in Ohio in terms of so-called "tort reform," the necessity of such additional requirements in medical negligence claims is questionable, at best. Further, it is our position that it will result in added expense to an injured patient in terms of being able to pursue litigation against a doctor, hospital or nursing home in Ohio. The requirement of an affidavit signed by a medical expert at the time of the filing of the lawsuit will likely have a chilling impact on the ability of patients to obtain justice in Ohio when injury or death is caused by medical negligence. Experts are going to be unwilling to sign affidavits of merit as required by this new rule without adequate discovery of additional facts that can only be obtained during formal discovery after the filing of a lawsuit.

We and other attorneys that handle considerable medical claims will continue to monitor this new requirement in the law and will do what is necessary to protect the interest of you, our clients, in seeking a fair outcome in the event that a preventable and foreseeable act of medical negligence harms you or a loved one.

Howard Mishkind, Esq.