Category: Uncategorized

When families put their loved ones into a nursing home, they expect that they will receive adequate care for their physical, medical, mental, and social needs. Nursing homes have a responsibility and a duty to provide reasonable and adequate care, and when they fail in any area of that care, it may be considered neglect. Regrettably the nursing home industry is dominated by corporations who own and run the nursing home facilities whose main focus in profit. Those few nursing homes that refused to take Medicaid patients because of the rate for Medicaid reimbursement seem to provide an acceptable quality of care. Could it be that this is because their per patient fees are higher? Most elderly people cannot afford to spend $5000 or $6000 a month for nursing home care and are dependent on Medicaid to pay the bill.

Nursing home neglect may include any number of failures, from not providing adequate nutrition to actively ignoring patients who ask for assistance. Families of loved ones who were neglected can file lawsuits against the individuals and the facilities responsible for failing to provide expected care. Neglect in the nursing home is often considered a kind of abuse most seen in the form of inaction, or a failure to act. This failure to act may be unintentional and may result from either understaffing or staffing by unqualified individuals. This is sort of neglect often results from the efforts of the nursing home attempting to increase profits by cutting costs.

In the nursing home context, neglect may happen in several ways. Some of the more common are:

• Failure to provide adequate medical mental health or dental care
• Failure to monitor a patient’s health condition
• Inadequate hygiene such as bathing, toilet use, and clothing changes
• Failure to change or clean the patient after incontinence
• Inadequate food, nutrition, or hydration
• Not aiding the residents with their mobility
• Failure to provide adequate equipment or assistance for the safety of the patient resulting in falls or other accidents which were preventable
• An inadequate number of, or inadequately trained staff
• Ignoring calls for assistance
• Deactivating call lights

In summary, nursing home operators often treat the elderly and infirm as “commodities” rather than people. The difference between what the state pays the operator and the amount he spends to care for the patient is his profit and the amount of profit determines whether he drives a Chevrolet or a Rolls-Royce.

Sometimes injury is caused, not by the staff at the nursing home or by shortcomings in its’ physical facility, but by the physician retained by the nursing home to provide medical care to their patients. The way medical services are delivered today makes it impossible to find a family practitioner willing to come to see only one patient in a nursing home no matter the strength of their past relationship. Accordingly, the nursing home hires a physician to come in and make the rounds of patients whom the nursing staff indicate needs his service or the patient requests to see him. On average, the patient sees the doctor a few times each week and when a doctor fails to recognize or inappropriately treats injuries caused by a lack of mobility assistance or infections that result from poor hygiene, there may be a medical malpractice suit against the doctor.

So, what do you do upon learning that your loved one is being neglected?

• Call the Ohio Department of Health complaint hotline at 800-342-0553
• Email a complaint to the Ohio Department of Health that includes the following: 
• Your name and address
• The name and address of the facility
• The names of the individuals involved
• Names and contact information for witnesses
• The name of the patient and room number
• The date, time, and frequency of the incident
• Your opinion is to whether the incident is an isolated event or systemic problem along with your reasons for that conclusion
• And, a description of any other action you’ve already taken.
• Fill out an Ohio Department of Health complaint form which can be downloaded from the department’s website.

Six years ago, 59-year-old May Hicks was struck by a vehicle as she walked out of Scioto Downs Casino and Racetrack in Southern Columbus. In addition to a shattered lower leg and ankle, May sustained head injuries and partial hearing loss. She was hospitalized for eight days, then confined to bed for four months, and for the remainder of her days she will need a cane to aid in walking. Her ankle will never function normally again. The Casino/Raceway refused to pay. Claiming they had done nothing wrong, they offered to pay only $15,000 to May for her injuries and medical bills.

In October 2019, Shawn Dingus and Mike Guluzian represented May in a jury trial against the driver and Scioto Downs. After four days of testimony, the jury found both the driver and Scioto Downs responsible for causing May’s injuries and awarded her the sum of $3,925,000 in damages. The jury found the driver negligent for failing to yield the right-of-way to May and found Scioto Downs responsible for failing to protect its customers, from whom it makes millions of dollars each year. Specifically, the evidence showed that Scioto Downs funneled pedestrians to a dangerous area leading away from the casino to its parking lot, failing to erect any signs warning drivers they were approaching a crosswalk or to take other actions to protect its customers once they left the casino. Compounding these failures, the casino also chose to park a shuttle bus on the roadway that partially obstructed the view of both drivers and pedestrians. These failures played a significant role in the events that would forever change May’s life.

Unfortunately, Ohio law will prevent May from receiving what a jury of eight Ohio citizens determined she deserved. In the end, May will likely receive only one tenth the of the actual verdict amount.

Why? Tort reform.

You may have heard it mentioned in the news once or twice. It sounds like something an older British gentleman wearing a powdered wig might declare in Parliament.

In reality, it’s a very American issue, and it’s costing deserving Ohioans like May Hicks millions in rightful compensation. Which is why at Plymale & Dingus we call it “tort deform.”

Tort reform is politician talk, worded to convince you, the public, that substantial jury verdicts for serious injuries need to be reined in. So, legislation was passed by the Ohio legislature in 2005 which limits the amount of damages an injured person can receive to $250,000 in most cases, up to an absolute maximum of $350,000 where the injured person’s medical expenses exceed $120,000.

It’s a win for large businesses like Scioto Downs and insurance companies that go to trial knowing they can’t be held liable for more than $350,000—a drop in the bucket compared to what they should be accountable for.

It’s a loss for May Hicks, a beloved figure in her community who runs a small market that’s a favorite for local fireman, police, and veterans.

And it’s a loss for democracy. Trial by jury is an essential part of our democratic system and, in fact, that right is enshrined in the U.S. Constitution. Trial by jury does not always yield a just result, but experience teaches us that citizen participation in the process of administering justice is part of the glue that keeps us on the pathway of democracy. The Legislature’s so called “Tort Reform” nullifies the jury’s verdict and renders this and many such jury verdicts nearly meaningless, essentially saying that juries can’t be trusted to decide how to compensate injured victims. Of course, the Ohio “tort reform” says nothing about very low or inadequate jury verdicts. It addresses and greatly reduces only verdicts for the most severely injured. Those citizens who are most deserving of substantial money damages are now, by law, limited in the recovery of those damages. In our opinion, in passing this law, the Ohio legislature has catered to the desires of big business and sent the message that Ohio citizens are too dumb to be trusted with deciding what is just and fair. Instead, the legislature has declared that they are superior to those who voted them into office. Moreover, the imposed limits on damage recovery apply to all jury verdicts without the legislators having heard one word of the evidence in the case. In doing so, our legislature has also sent another message to Ohio citizens: that the bottom line of big businesses is of more importance to them than the safety and welfare of its own citizens.

Tort reform affects every liability case in Ohio, save only the most extreme cases (paraplegia, loss of a limb, death, etc.) and it has been enacted and enabled by legislators in the Ohio statehouse who have failed to amend it in any serious manner over the last 14 years.

Thanks to this law and the legislators who refuse to abandon this incursion on our right to trial by jury, injured Ohioans, like May Hicks, are not only being deprived of millions of dollars, they are also being deprived of their Constitutional right to trial by jury. Instead, as in many autocratic countries, this part of our Constitutionally protected “Right to Trial by Jury” is no longer “inviolate.”

The U.S. Supreme Court has agreed to hear arguments in four same sex marriage cases this April. The justices will decide whether to uphold bans in Michigan, Ohio, Tennessee, and Kentucky. The court had previously declined to decide the issue because the circuit courts that had previously issued rulings all ruled against the ban. With the 6th Circuit’s decision, the federal appellate courts are no longer unanimous in their decisions. The U.S. Supreme Court’s decision to hear these cases comes on the heels of Florida’s recent January 6th recognition of same sex marriage, the 36th such state to do so, and the critical questioning of state bans in Texas, Louisiana, and Mississippi.

If the ban on same sex marriage is lifted, insurance companies will likely be required to extend insurance benefits to same sex spouses. The decision, however, will likely have no effect on the ability of self-insured plans to implement a plan-specific definition of “spouse.” While employers may use their own terms to define spouse, enacting a definition of spouse that is at odds with state and federal law may expose those companies to lawsuits under the state and federal anti-discriminatory statutes. Many expect a decision by June of this year.

Alabama has become the 37th state to support legalizing gay marriage as an Alabama Federal District Court has ordered the issuance of marriage licenses for same sex couples on Monday, despite heavy opposition from the state’s chief judge, Roy S. Moore. This comes following his eleven-hour effort to order local judges to disregard the ruling legalizing gay marriage within the state. “Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [state law],”Alabama Supreme Court Chief Justice Roy S. Moore said in an order.

The U.S. Supreme Court denied Alabama’s request to stop the issuance of marriage licenses to same sex couples as the District Court ruled last month that the state must issue marriage licenses starting Monday, February 9th. Moore wrote the order alleging that the ruling violates the U.S. and Alabama Constitutions. However, the move drew quick condemnation among legal experts and human rights activists alike as the Federal Court’s decision superseded the state court decision and Moore was in no position to disregard the order. This move drew comparisons to the state’s decision to block the implementation of a federal order to integrate the University of Alabama in 1963.

Regrettably, ice and snow are a part of wintertime life in Ohio. Those are not my words, but those of our state supreme court. Unfortunately inclement weather, such as that we’ve recently had, leads to a number of mishaps and injuries caused by slipping and falling on snow or ice covered streets, sidewalks, or parking lots. During such times we receive many calls from our prospective clients who have been injured by such a fall. It’s my unpleasant task to inform them that our supreme court has decided that there is no liability on the part of a property owner for injuries resulting from natural accumulations of ice and snow on outdoor parking lots or sidewalks as the property owner is charged with no duty to remove such hazards. This is true even where a local ordinance requires the abutting property owner to clear sidewalks of ice and snow.

As to ice or snow tracked into a place of business, barring some exceptional circumstances, there is also no liability on the part of the business owner or property owner for injures resulting from a fall caused by the tracked in moisture. Regrettably, the law expects pedestrians who traverse areas of accumulated ice or snow to be aware of and to exercise caution when ambulating over the area. Fortunately, the law treats less harshly those whose injuries have been caused by the business owner or whose neglect in cleaning up hazardous accumulations on the floor of their premises has resulted in an injurious fall to their customer.

I’m sure you hope, as do we for warmer days.

In March of 2011, Plaintiff Gerri Thomas, a licensed practical nurse, was injured in an automobile collision when a truck driven by Defendant Nicholas Pisoni struck her while she traveled at approximately 40 mph. At the scene of the accident, she was placed in a neck collar and backboard for immobilization and transported to the hospital. Once there, it was discovered that the force of the collision broke the Plaintiff’s neck at the C-6 vertebrae. Plaintiff’s doctors ordered that she wear a hard cervical collar to allow the bones to heal. Unfortunately, Plaintiff experienced increasing pain and was first treated with steroid injections but eventually required surgery. Due to the injury, Plaintiff testified that she lost wages totaling over $9,400.00, out-of-pocket medical expenses of $4,467.00, and incurred medical bills of approximately $37,000.00.

After hearing all of the evidence, a Stark County jury awarded Plaintiff just $2,114.11. Of this amount, $700.00 was for lost wages, $214.11 was reimbursement for her cervical collar, and $1,200.00 was for pain and suffering. Plaintiff requested a new trial arguing that jury’s verdict was inadequate and contrary to both the law and the facts presented at trial. This request was initially denied but was later granted on appeal by the 5th District Court of Appeals.

The Appellate Court found that “[t]he jury’s award did not fully compensate [Plaintiff] and denied her justice.” Thomas v. Pisoni, 2015-Ohio-376, ¶ 35 (5th Dist. Stark). The court went on to state that the “jury’s verdict was inadequate because there was no evidence disputing the severity of the collision; no evidence, expert or otherwise, disputing the collision neither solely caused appellant’s fractured neck and subsequent surgery; nor disputing the collision resulted in limited life functions, pain and discomfort.” Id. The Court concluded that the damages award could not be reconciled with the “uncontroverted evidence” and was “against the manifest weight of the evidence.” Id. at ¶37. Let us hope that Ms. Thomas’ next trial fully and adequately compensates her for the injuries and delivers the justice she was denied at her first trial.