toledoblade.com -- Malpractice and Personal Injury Law

Join Toledo Pro, R. Ethan Davis, to discuss malpractice and personal injury law. Mr. Davis, an attorney with Barkan & Robon, Ltd., will answer reader questions and share his legal expertise.

Karen Heebsh, moderator: (1:00 P.M. ET ) I am pleased to introduced our legal Toledo Pro, R. Ethan Davis from Barkan and Robon, Ltd. Ethan is here today to answer your questions about malpractice and personal injury law. Welcome, Ethan. Thanks for being here today. Let’s start off by letting Ethan tell you a little about himself.

Barkan and Robon, Ltd., Ethan Davis: (1:05 P.M. ET ) I am an associate attorney at Barkan and Robon, Ltd., which is a nine attorney firm with an emphasis in plaintiff litigation.

Karen Heebsh, moderator: (1:10 P.M. ET ) Great, thanks. Let’s begin with the first question.

Jacqueline: I slipped and fell in my office parking lot last year. I went to a chiropracter a few times but am still having discomfort. My company is really lagging in paying me back (I paid for this out of my pocket). I this something I should pursue?

Barkan and Robon, Ltd., Ethan Davis: (1:12 P.M. ET ) It depends on what caused the slip and fall. If the fall was caused by a defective condition in the parking lot (pot hole, debris, etc.) then you may have a premises liability claim against your employer for failure to properly maintain the parking lot. However, if the fall was caused by ice or snow, there is typically no liability, as ice and snow is considered an open and obvious hazard.

Interestingly, you state that your company is lagging in paying you back. Did the company agree to pay your medical expenses from the fall? If so, then you may have a breach of contract claim.

MP: How much does it cost to discuss a possible personal injury case with an attorney?

Barkan and Robon, Ltd., Ethan Davis: (1:19 P.M. ET ) Typically it doesn’t cost a thing. Most personal injury attorneys handle cases on a contingent fee, where they are paid by a percentage of the total recovery. If there is no recovery, then the attorney does not collect any fee, however the client is usually responsible for the expenses of litigations (court fees, filing fees, expert witness fees, etc.).

Since most personal injury attorneys work on a contingent fee, there is no charge for office visits to discuss potential cases with attorneys.

John: How do you feel about certain medical associations informing their members that is it ethical to refuse service to plaintiff's medical malpractice attorneys and their family members?

Barkan and Robon, Ltd., Ethan Davis: (1:25 P.M. ET ) I think it’s atrocious. I believe the AMA has not condoned this practice and is against it. For medical providers to refuse services to an individual/his or her family members simply because of that person’s profession is unprofessional and morally and ethically offensive.

Maybe attorneys should likewise stop providing services to physicians (ie. Estate planning, tax planning, domestic relations, etc.). What comes around goes around.

William: What types of personal injury cases do you refuse to accept?

Barkan and Robon, Ltd., Ethan Davis: (1:29 P.M. ET ) Bad ones.

It’s hard to say that there is a “type” of personal injury case that we don’t accept. We may not take a case if there is a slim chance of recovery, or if the expenses of pursuing the case would outweigh the prospective recovery (ie. The case is economically unfeasible.) Whether or not I, or any other attorney decides to pursue a particular claim is made on a case-by-case basis. If you think you have a possible claim, you should certainly consult an attorney.

Mary Jo: Hi, thanks for giving me this opportunity to ask you a question. My question is this...I had surgery in 1999 and am just now having complications, which I believe are a result of the surgery. How long after surgery do I have to file a malpractice suit?

Barkan and Robon, Ltd., Ethan Davis: (1:35 P.M. ET ) In the state of Ohio, you have one year from the date of the malpractice (surgery) or one year from the termination of the physician patient relationship. Therefore, you must generally file a complaint for medical malpractice within one year from the date the malpractice occurred. However, the statue of limitations may be extended by the “discovery rule”. That is, if a reasonable person would not have discovered the malpractice within the one year, and the effects of the malpractice do not manifest until a later date, you may have one year from the reasonable discovery of the injury.

In an event, you should consult with an attorney immediately.

Jennifer: Sometimes a few of the neighborhood kids use part of our yard to play football in. If they get hurt in our yard, could we be held liable even if we haven't given them permission to do so?

Barkan and Robon, Ltd., Ethan Davis: (1:42 P.M. ET ) It depends. If the children are considered “trespassers” then you as a landowner have a duty to warn them of dangerous conditions of the premises, which they may not appreciate. Liability may also depend upon the age of the children. However, if the condition of the property that causes the injury is “open and obvious” then generally the property owner is not liable.

Gloria: One year ago, I went into (edited) hospital for side pains. When entering the emergency room, I was taken to have blood work done. At this time they knew the pain was from my gall bladder. The pathology dept. also said I had leukemia due to the results of the blood work. I was admitted into the hospital. Due to the blood reading, they informed us they needed to get my white blood cells in control before performing surgery on my gull bladder. As days went by I became much sicker. Over a week had gone by on medication and still in the hospital. Finally another doctor ordered the pathology dept. to read the results again and take new blood work. At the same time my gall bladder became perforated. The doctor then came back and said the results from the first test when I entered the hospital were read wrong and I did not have leukemia. They rushed me into surgery to remove my gull bladder (the old fashion way) and was in the hospital for a couple more weeks to recover. Do I have any rights to go after the pathology dept. at the hospital. If the test was read correctly the first time, I would have had routine gall bladder surgery and out of the hospital in day or two.
Thank you.

Barkan and Robon, Ltd., Ethan Davis: (1:51 P.M. ET ) More information is needed to adequately respond to your question. Generically, you have a cause of action against a medical provider if their care, treatment in medical management falls below accepted standards of care. Thus, if the misdiagnosis fell below acceptable standards of care (ie. a reasonably prudent medical practitioner would not have diagnosed leukemia based on the initial blood work taken) then you may have a claim if the misdiagnosis caused injury. In your case, it appears the injury would be the extended hospital stay and the pain and suffering you experienced due to the delay in removing the gall bladder.

Also, you must bring a medical claim within the applicable statute to limitations, which in medical malpractice cases is generally one year from the act of malpractice.

Also, medical malpractice cases can be very expensive to litigate and the damages should far exceed the expenses of litigation (ie. expert witness fees) to be economically feasible.

In any event, since you said your hospitalization was approximately one year ago, you should see an attorney immediately for evaluation of your possible claim.

Barkan and Robon, Ltd., Ethan Davis: (1:55 P.M. ET ) It has been a pleasure talking and I appreciate your questions. Neither myself nor Barkan and Robon, Ltd. are representing any person to whom a response was provided and the foregoing should not be considered legal advice.

Karen Heebsh, moderator: (1:59 P.M. ET ) Thank you, Mr. Ethan Davis for being our chat guest today. If you question was not answered or if you have additional questions, submit you question through Toledo Pros (www.toledoblade.com/toledopros), or you may contact Mr. Davis directly at the law offices of Barkan and Robon, Ltd. at 419-897-6500.

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