Rick Stege - Stege-Law.com - Stege & Michelson

This information is not intended to be an exhaustive summary of the law or a substitute for legal advice. Please contact us or a lawyer of your choosing for specific legal advice.

A medical malpractice case is nothing more than negligence by a physician or a hospital causing injury to the patient. The three basic elements of any medical malpractice case are: 1) negligence, 2) proximate cause, and 3) damage. Negligence by a doctor means that he or she didn't act as a reasonable doctor would have acted under similar circumstances, or failed to act in a manner consistent with the standard of care required of medical providers. A violation of this "standard of care" is negligence.

"Proximate cause" means that there must be some connection between the physician's negligent act and harm and damage suffered by the patient. In other words, if the failure to perform an appropriate procedure made absolutely no difference in the patient's outcome or would "probably" not have led to any significant change in treatment, there is no proximate cause and the case will fail. [Medical experts give opinions on negligence and proximate cause. A physician may testify at trial, for example, that in his/her opinion the failure to perform a particular procedure was a violation of the "standard of care" and that such failure caused injury to the patient.]

Finally, there must be proof of injury or damage to the patient "caused" by the negligent act or acts, such as a shortened life span or a disfigured appearance.

IT IS RARE TO FIND A CASE IN WHICH THERE IS NO DOUBT AS TO THE EXISTENCE OF ONE OR TWO OF THESE THREE ELEMENTS.

BECAUSE THESE CASES TEND TO BE QUITE COMPLEX, IT IS A MISTAKE TO FAIL TO CONSIDER A CASE JUST BECAUSE THERE IS DOUBT OVER THE EXISTENCE OF ONE OR TWO OF THESE ELEMENTS.

[OF COURSE, SHOULD THE CASE EVENTUALLY GET TO THE JURY, THE JURY WILL BE CALLED UPON TO DECIDE ALL THREE ELEMENTS.]

There are other factors which can make or break a claim and which an attorney must evaluate. Examples are: 1) Did the patient contribute to the outcome by his/her own negligence? 2) Is the claim timely – in other words, is it too late to bring the claim? (In each state there is a "statute of limitations", together with a variety of exceptions and variations.) 3) Is there a responsible party who can be located and who has financial resources (insurance, personal assets, etc.) with which to appropriately and fully satisfy a claim? 4) Can an expert be obtained to support the claim?

Contact us if you think you may have a claim or a case. We will be pleased to evaluate it for you.

This is a report about a nursing home resident in a suburban nursing home, owned and operated by one of the largest players in the nation's nursing home industry. This resident received neither the best, nor the worst, care that this particular home has to offer. Tragically, the neglect of this resident is an open invitation to infection, septicemia, and even death.

All nursing home residents have a right to "adequate and appropriate" care. Remedies exist to enforce those rights. We bring lawsuits in Ohio and other states to obtain important and meaningful results.

When appropriate, our clients obtain not only compensatory damages for the harm and damage suffered, but punitive damages designed to act as a deterrent to future abuse by those who are entrusted with the well-being of others. The thousands of nursing home residents who receive substandard care are entitled to advocates who work to provide protection and compensation for the harm they've suffered.

"Everyone is scrambling to keep beds filled," says an attorney who represents long term care providers, "and they are not always prudent about how well-equipped they are to handle a particular type of patient." This scramble for dollars leads to short-staffing and serious injuries to the residents:

Unsightly pressure sores (bed sores).
Falls -- especially repetitive falls and fractures -- wandering, drowning (e.g. whirlpool disasters), scalding, and other mishaps caused by neglect and inattention.
Excessive restraints causing damage from bruising to strangulation.
Malnutrition and dehydration.
Overmedication, adverse reactions to medication, administration of the wrong medication or the wrong dosage.
Infections from neglectful attention to the hygienic requirements of those with devices like catheters, tracheotomies and feeding tubes.
Physical and sexual abuse by staff or other residents.

Poor care in the face of massive subsidies has caused Congress to make the nursing home industry one of the most highly regulated industries in the nation. The 1987 nursing home reform law, enacted as part of the Omnibus Budget Reconciliation Act of 1987 ("OBRA 1987") represents the most significant change in nursing home law since the Medicare and Medicaid programs were originally enacted in the mid-1960's. We now have a federally mandated standard of quality care and acronyms such as the "MDS", "RAI's", and "RAP's." State surveyors routinely cite nursing homes for poor care of residents. But much of the substandard care remains unremedied.

Here are four useful tools for those residents who have been victimized by poor care:

Most states guarantee nursing home residents the right to dignity and to "adequate and appropriate medical treatment and nursing care." In Ohio, for example, thirty-two distinct rights are guaranteed. Ohio is one state in which residents may bring a private cause of action for the violation of these rights. Such an action may be brought against nursing homes and physicians for compensatory damages, punitive damages, and attorneys fees.

Effective November 3, 2002, a bill enacted by the Ohio legislature revised the time limit for such lawsuit, to ONE YEAR. Exceptions, however, exist under certain circumstances.

One of the most effective remedies for nursing home abuse and neglect is a negligence action. Did the facility fail to use ordinary care in providing for the needs of the resident? If so, the facility is negligent. A facility cannot treat all its residents alike; it must take into consideration each resident's known physical and mental condition. Thus, if a resident has a fractured femur, is diabetic, and at risk for developing pressure sores, the nursing home must take this risk into account in assessing and caring for its resident. Failure to do so exposes the nursing home to liability for compensatory, and in some cases, punitive damages.

A facility is liable on the theory of vicarious liability for the negligent actions of its employees which include nurses, nurses' aides, staff physicians in some instances, and any other employees, even if not direct medical providers. There may be negligence because of the facility's corporate failures, such as inadequate staffing, poor training, inadequate assessment of the resident, and failure to correct systemic deficiencies. Not surprisingly, it is these corporate failures which often cause the most severe damage and tend to result in the highest jury verdicts.

Effective November 3, 2002, these claims are treated as malpractice claims and must be brought within one year. However, just when that one year period begins to run is quite complex and varies, depending on the circumstances.

When a physician is a participant in the poor care received by the resident, the physician may be liable for malpractice. In Ohio, such claims are subject to the one year limitations provision of the Revised Code.

Nursing homes must have medical directors who are required to visit the facility periodically. Typically, the medical director will have a physician-patient relationship with many of the residents in the facility and will be available on an on-call basis to evaluate and treat the remaining residents. Some nursing homes have board certified gerontologists as their medical directors.

Many outside physicians are reluctant to see patients in nursing homes. Some physicians decline to go to nursing homes to see their patients and transfer primary care responsibilities to the medical director or to some other physician. [Others triage their nursing home patients: Those patients who can be expected to die in the nursing home may receive minimal care. Thus, there are forces at work which can lead to malpractice by an otherwise competent physician and which can expose physicians to liability.]

Most nursing home residents receive assistance from Medicare or Medicaid. Many, however, are "private pay." It often costs private pay residents over $150 - $200 a day, for which they receive substandard care. In other words, many residents are not receiving what they pay for. This can be a breach of the resident's contract with the nursing home, resulting in the unjust enrichment of the facility. Some states permit juries to award residents refunds for their payments if the jury finds that the resident did not receive the benefit of her bargain with the nursing home. Assuming a substandard stay of eighteen months, this can amount to a refund in excess of $70,000.

Nursing home care doesn't have to be like this. There are legal remedies for residents who have been mistreated and when properly presented, juries pay attention. The public recognizes that nursing homes should pay for the harm they needlessly inflict on the elderly.

In most situations, the law that applies to railroad workers differs from the law that applies to workers in any other industry. Therefore, it is critical for railroad employees to seek legal advice from a law firm that is experienced with the railroad industry. Handling a railroad case is unique. There are many rules and procedures involved in the railroad industry that can adversely affect a case if they are not handled properly. Stege & Michelson provides railroad employees with the experience and expertise necessary to guarantee their legal rights are protected.

Railroads ordinarily do not educate their members on their legal rights. In fact, most railroads spend a significant amount of resources making sure that employees do not enforce their legal rights. Stege & Michelson serves as designated legal counsel to Rail Labor, providing free consultation, and representation at a reduced fee, to all railroad employees. Our goal is to make sure that railroad employees are fully educated, allowing them to level the playing field with their employers.

Our expert legal representation extends to both workplace and non-workplace injuries, as well as employment disputes. Unlike law firms that concentrate efforts solely on railroad injury claims, we seek to provide comprehensive legal advice and representation on all aspects of railroad employment. Our attorneys have handled cases for railroad employees in the areas of Wrongful Discharge, violations of the Family Medical Leave Act, Americans with Disabilities Act, and have brought class action lawsuits against the railroad for fraud and breach of contract as a result of dishonest hiring practices. We are dedicated to providing our clients with an unmatched level of individualized personal service, making sure that they are always informed and are a vital part of the decision-making process.

FEDERAL EMPLOYERS' LIABILITY ACT ("FELA")

The Federal Employers' Liability Act, or FELA, is a federal law that applies to injured railroad workers. The FELA was passed by Congress in 1908 when it became apparent that railroads had a special responsibility to their employees who were exposed every day to the risks of the job and were unable to provide adequately for their own safety. The FELA is intended to take the place of state workers' compensation statutes. Railroad employees who are injured on the job are generally entitled to receive compensation for their injuries if the following factors are shown:

At the time a railroad employee suffers an injury, it must be determined that he or she was acting in the "course of employment." This means that the activities of the employee at the time of his or her injury were a part of their job, or in some way, directly or indirectly, benefited the railroad. Obviously, all of an employee's regularly assigned tasks are in the course of employment, as are special tasks assigned by a supervisor. There are also many activities considered to be in the course of employment that are not directly related to an employee's regular job duties, such as traveling to and from work.

One of the aspects of the FELA that makes it unique from state workers' compensation laws is the requirement that an employee prove that the railroad was in some way negligent before he or she is entitled to recover damages for an injury at work. "Negligence" is defined by courts as the failure to use ordinary care under the circumstances.

The railroad owes its employees several basic duties and obligations. For example, the railroad must provide its employees with a reasonably safe place to work, on and off of the property, reasonably safe tools and equipment, and a sufficient number of employees to perform assigned work. It must assign the employees work for which they are reasonably suited, and not assign employees tasks which reasonable individuals would realize might aggravate a known disability. The railroad's failure to use ordinary care under the circumstances in satisfying it's obligations constitutes negligence under the FELA.

In order to recover under the FELA, an employee must also show that the negligence of the railroad caused his or her injury. It is not necessary, however, to show that the railroad's negligence was the only cause. The railroad is liable under the FELA if its negligence played any part, no matter how small, in bringing about or causing the injury or damage.

The FELA does not specifically provide rules for measuring what damages may be recovered for an injury suffered on the job. The Courts have determined, however, that an employee may recover all damages that will reasonably compensate him for his injury and damage suffered as a result of the negligence of the railroad. Justice William O. Douglas of the United States Supreme Court said that, "The Federal Employers' Liability Act was designed to put on the railroad industry some of the costs for the legs, eyes, arms, and lives which it consumed in its operations."

The following elements of damage may be considered in evaluating a case brought under the FELA:

Under the FELA, no action may be brought against the railroad unless it is commenced within three (3) years of the date of the accident. This means that an employee, or his dependents if the employee loses his life, must file a lawsuit in court within three years of the date of the accident. It is not sufficient merely to make a claim against the railroad within the three-year period. The claim must actually be filed in court. Failure to file suit within three years bars the employee from making any claim for the damages suffered from that accident at any time thereafter.

SAFETY APPLIANCE ACT / LOCOMOTIVE INSPECTION ACT

Interrelated with the FELA are the Federal Safety Appliance Act ("SAA") and the Locomotive Inspection Act ("LIA"). The SAA requires railroads to equip their cars with certain safety devices, including automatic couplers, power brakes, secure grab irons, and uniform drawbars. The LIA makes it mandatory for railroads to keep their locomotives and tenders in proper condition and safe to operate in the service to which they are put.

A violation of the requirements of these Acts imposes absolute liability on the railroad. In other words, where a violation is shown, and injury to an employee results, the employee does not have to prove negligence in order to hold the railroad liable. This is the primary distinguishing feature between actions brought under these special Acts and the FELA generally.

EMPLOYMENT DISPUTES

As discussed above, railroad employees are often treated differently than other working men and women under the law. A primary example of this difference is the Railway Labor Act ("RLA"), which is a federal statute that provides the exclusive remedy for disputes arising under a collective bargaining agreement between a railroad and its employees. In the past, nearly every dispute relating to a railroad worker's employment had to be resolved under the special grievance procedure established by the RLA. Recently, however, the United States Supreme Court has found that the RLA applies only when it is necessary to interpret the collective bargaining agreement to resolve a dispute. Other matters, which are separate and apart from the contract, may be handled in a court of law before a jury.

Prior to the Supreme Court's decision mentioned above, Mr. Smith would have only one method of challenging his discharge. He would have to file a grievance with his union and go through the long, tedious process set up by the Railway Labor Act. The most he could recover is reinstatement and payment of the wages he would have otherwise received during his time off. In many instances, however, if the contract prohibits a specific number of absences in a short period of time, Mr. Smith would have no remedy. He would lose his job and seniority and a significant amount of wages.

After the Supreme Court's decision, Mr. Smith may now challenge his discharge in court. One way is to file a lawsuit in court based on the Family Medical Leave Act, which allows employees twelve weeks of protected leave to care for a family member with a serious health condition. Discharging an employee who attempts to take FMLA leave exposes an employer to damages including reinstatement, lost wages, benefits, court costs, attorneys fees, liquidated damages and interest. The threat of such a lawsuit obviously provides railroad employees with much greater protections than only the grievance procedure.

Other ways include remedies under the Americans With Disabilities Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and state laws prohibiting wrongful discharge and sexual harassment. Stege & Michelson is committed to utilizing each and every method available to protect the rights of railroad employees, and is actively working to expand those protections to new areas.