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BK Managing Shareholder David Betras provides insight/info on medical malpractice, insurance companies, flooding, during Free Legal Advice Monday broadcast on WFMJ Today

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OK, OK, it wasn’t exactly the first Monday of the month, but due to circumstances beyond our control BK Managing Shareholder David Betras spend the morning of April 13 answering questions from viewers on the set of WFMJ Today. You can watch the episode here.

He’ll be back on Monday, May 4, so if you have a question for David call 330-744-8821 during the show, DM us on our Facebook page, or email your question to wfmjtoday@wfmj.com David will be happy to help in any way he can.

Here are the interesting and informative queries he handled deftly during the broadcast…

Question 1: I’m wondering if there is anything I can about this. I had a breast cancer reconstruction surgery which my health insurance company refused to pay for. They said they didn’t cover it because it was coded as cosmetic surgery.

I contacted the doctor, the insurance company, and the hospital. The hospital denied that the procedure had been coded incorrectly. I appealed the Insurance company’s decision and they denied it again. As a result, I now have a $20,000 debt that’s been turned into collections.

I haven’t paid anything yet. Five years later they offered to settle for 10% There is more to the story, but any advice David can offer will be greatly appreciated.

David’s answer: I hate insurance companies. I would have fought the insurance company on her behalf. She could have filed suit against the insurance company. I’d have to see the policy, but this is ridiculous. It sounds like she had breast cancer and had a mastectomy or a partial mastectomy, and that’s part of the treatment. It’s not cosmetic. She’s not going in for a breast enlargement. She had the surgery because they removed a breast. It’s ridiculous. She still has time to hire an attorney and pursue this because the providers are continuing to attempt to collect their money.

Question 2: If I’m married and making my will but don’t want my partner to be the beneficiary of my estate, can I designate someone else to take charge of my belongings or does it have to be my spouse?

David’s answer: Unless you have a prenup, the law protects a spouse. So, if you make a will and try to cut out your spouse, she or he… can elect against the will because under Ohio law you must provide certain things for them.  So, you can’t cut them out altogether, but if you see a lawyer they will tell you what you must give them by law.

Question 3: My basement flooded due to all the rain we got recently. It has never happened before. I’m concerned it may have something to do with work the city is doing near their road. Who should I contact to look into this situation?  Should I contact an attorney or have someone do an inspection first?

David’s answer: I would get an inspection first. You have to determine where that water came from. I also suggest that they contact their council person to find out if the city or the contractor doing the work has insurance that would pay for the damage. If that doesn’t work, you could try to turn it into your homeowner’s insurance, but the insurer is going to want to know where that water came from. So, inspection first, city council person next. and your insurance company at the same time.

If you don’t get any relief it’s time to get a lawyer involved.

Question 4: I use a cell phone for work. Is it legal for a company to require me to add apps like a time clock or an app allowing them to contact you for work on your personal cell phone? Can I refuse to use my personal cell phone for work?

David’s answer: Yeah, but then they can fire you.  You have a fair point. If you don’t want them doing that, then just say you’re not going to do that, and then they can fire you, and there’s nothing you can do about it because Ohio is a will to work state.

That’s the way the cookie…

I hate these apps because I have so many passwords. A lot of times, you don’t go in and use the app, and then when you have to, if it didn’t recognize your face or something, I’m like, oh, God, what was the password on this? I can’t remember all these passwords. You’re going to reset it and say, oh, you can’t use a previous password. Yeah. Ah! We feel your pain. Honestly, these passwords are driving me nuts. Driving us all nuts.

Question 5: I bought cars for two of my family members. Both times, I have paid cash for the car. One time, it involved a trade-in. My question is, why do I have to pay a $300 to $400 documentation fee?

David’s answer: I don’t know why you’re paying a $300 to$400 documentation fee. Did you ask the dealership?

Caller: Well, no, unfortunately, I did not.

David: Well, I don’t think every dealership charges a documentation fee. There’s licensing fees and titles, but they’re not $300. I just bought a car. I didn’t pay any documentation fee. I always buy extra insurance on my wheels because I always hit my wheel rims. As it relates to this situation, I would go to the dealership and ask them what that documentation fee is’ what they charged you $300 for, okay?

Caller: Do I have any legal recourse?

David: I won’t know that until they’ll tell you what the documentation fee is for. And then if it sounds bogus, you can take them to small claims court for it.

Question 6: Can a landlord charge a pet deposit for an emotional support dog?

David’s answer: No. I don’t think so under the Americans with Disability Act. The dog is not a pet. It’s a service animal. So, I would contact the Ohio Attorney General and see if they can help you.

Question 7: Can you claim your children on taxes even if your kids are being taken care of by grandparents?

David’s answer: That’s better for an accountant, but if you have dependents and probably,unless the grandparents are taking the deduction, if they didn’t do anything formal through the courts they probably could still take the children as dependents.

Question 8: A person says their and their neighbor’s basements have flooded with sewage several times over the last 20 years. The city’s come out to take a look at the drains a few times, hired someone to inspect them who said the answer was inconclusive. They city keeps saying they’re going to fix the problem, but so far hasn’t. The person’s gone to city council meetings to complain. They were flooded again two weeks ago with heavy rain and more sewage water, which ruined more belongings.

So is the question: is there any way they can sue the city or take some sort of legal action to make tcity officials take the problem more seriously?

David’s answer: First, I would get an independent inspection to determine why this is happening.  If it is the city’s fault you may have recourse because they’ve been on notice about the problem.

You’ll want to turn this into your homeowner’s insurance, of course. But you want to make sure you get the problem fixed. So start by having an independent party diagnose the problem.

Question 9:  This person says a friend of hers lost her baby after a C-section when medical professionals neglected a fetal monitor that showed the baby’s heart had stopped. Twelve minutes went by before anyone did anything. In addition, sponges were then left inside of her, she got an infection she had to go back in and have them surgically removed. Does she have a medical malpractice case?

David’s answer: Absolutely she has a case. There’s definitely something wrong if the situation is as described. Please have your friend contact us at 330-746-8484 so we can talk to her and evaluate what happened. There’s no charge for initial consultations.

Tune in on  May 4 for the next episode of Free  Legal Advice Monday on WFMJ Today…

Don’t let the clock run out: if you’ve been injured allowing the statute of limitations to expire could stop you from receiving the justice and just compensation you deserve

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Attorney David Betras
BKM Managing Partner David Betras

Statutes of limitations (SOL), laws that establish the maximum amount of time that parties involved in civil or criminal matter have to initiate a legal action, have been with us since the days of the Greek Republic and the Roman empire, which means they have been vexing and frustrating attorneys and citizens for thousands of years. And believe me, there are very few things as frustrating as having to tell someone who has been injured or wronged in some way that I can’t help them because the SOL that applies to their situation has run out.

In the vast majority of cases, it is not the potential client’s fault—aside from those of us who practice law most people have no idea that SOLs even exist or what the time limits are. To address that dilemma and reduce the chance that one of my loyal readers will be denied justice because the jurisprudential clock has run out, this week’s column will serve as a primer on this ancient, complicated, and confusing area of the law.

One caveat—how’s that for throwing a little Latin lawyerly lingo into mix—because SOLs are complicated and critical to the pursuit and disposition of cases, the information I’m providing should not be construed as legal advice. If you have been injured or harmed in some way and believe you have a cause of action, please, please, please consult the attorney of your choice immediately. Waiting too long or failing to do so could result in the courthouse door being needlessly slammed in your face—you should not allow that to happen.

Now, onto the topic of the day. Let’s begin with a look at the SOL that applies to personal injury cases like vehicle accidents, dog bites, product liability, premises liability which in common parlance is referred to as “slip and fall” and harm caused by other types of negligence. Under Ohio law the injured party has two years from the date the incident occurred to file suit. In addition, if a loved one is killed as a result of another party’s negligence families have two years from the date of death to file a wrongful death claim.  

Here’s a tip: don’t wait 23 months and 29 days to seek legal advice. It’s far better to explore whether you have a valid claim than to let the clock run out.

You probably noticed that medical malpractice was not listed above. That’s because med mal claims must be filed within one year of the date the injury was or should have been discovered or when the doctor/patient relationship ended, whichever occurs later. This more flexible time frame exists because it may not be immediately apparent that an injury has occurred.

In the interest of fairness, I feel compelled to note that the statute of limitations for legal malpractice mirrors the med mal SOL. Clients have one year from the date they discover or should have discovered that malpractice occurred or when the attorney-client relationship ends, whichever is later.

There is, however, a complicating factor when it comes to malpractice: something known as a statute of repose which sets a virtually non-flexible time limit for bringing actions against practitioners in Ohio. That means claims against attorneys, doctors, dentists, optometrists, and chiropractors must be brought no later than four years after the alleged malpractice took place.

There are exceptions—of course there are…Anyway, if a client exercising reasonable care and diligence, could not have discovered the legal malpractice within three years after the occurrence of the act or omission, but discovers it before the expiration of the four-year period they have a year after the discovery to bring an action.

A similar exemption exists for med mal and there’s a bonus exception: the statute of repose does not apply to situations in which a foreign object is left in a patient’s body during a procedure. If a scalpel turns up in an x-ray ten years after you had surgery, you’re free to file suit.

Here’s the bottom line: SOLs and statutes of repose were created to protect defendants, particularly those who are rich and powerful. Are they fair to injury victims and other plaintiffs? Probably not, but they won’t be disappearing in our lifetime, if ever, so it’s up to every citizen to avail themselves of the civil justice system when the need arises. 

Nothing frivolous about it: Trial lawyers who hold doctors and other providers accountable when they injure or kill patients play a major role in improving America’s health care system

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Attorney David Betras
BKM Managing Partner David Betras

Over the years I’ve developed a relatively thick skin—something that is basically a job requirement for criminal defense and personal injury attorneys and chairs of political parties. I’ve lost track of how many times I’ve been called an “ambulance chaser,” “shyster,” “commie,” “hack,” yelled at for getting criminals off, and been told the “What do you call 99 lawyers at the bottom of the sea?” joke, 99,000 times. (The answer: a good start.)

For the most part, this stuff just rolls off my back. But there is one two-word phrase that simply sends me over the edge: “frivolous lawsuit” as in  “If you ambulance chasers would stop filing frivolous lawsuits health care costs wouldn’t be so high. Thanks to you shysters medical malpractice insurance premiums are skyrocketing. You’re forcing doctors to practice expensive defensive medicine and driving them out of the profession.”

Aside from the fact that my firm has never filed a lawsuit that in any way comports with the definition of frivolous: i.e. not having any serious purpose or value, the medical malpractice cases trial lawyers like us bring play an important role in preventing doctors, other health care providers, and hospitals from killing and maiming patients.

And believe me, there is nothing at all frivolous about that when you consider that a John Hopkins University School of Medicine study found that medical errors and malpractice could feasibly be the third leading cause of death in the U.S. killing between 250,000 and 440,000 Americans each year. Imagine how much higher the death toll would be if lawyers like us were not holding medical professionals accountable.

Those statistics in and of themselves are troubling, but when you put a face, a name, and an actual case to the numbers they become downright heart wrenching. For example, last year, Brian Kopp who heads BKM’s complex litigation practice group and is one of the nation’s preeminent medical malpractice and wrongful death attorneys, represented the family of Megan Clay, a perfectly healthy 20-year-old who died after having what should have been a routine tonsillectomy on March 29, 2018.

More than four years after Megan passed away, her case went to trial and a Common Pleas Court jury awarded her family significant damages. After the verdict was returned Brian offered this comment: “I am the father of seven daughters and have one granddaughter and I cannot imagine for a moment what it is like to walk in the shoes of Jay Clay and his family. Jay, his wife Christine, and Megan’s brothers and sister have suffered a devastating loss. It is always humbling to represent a family that has suffered as they have.”

Despite all the data about the number and consequences of medical errors and tragic stories Megan Clay’s, the insurance industry, doctors, and business groups continue to use frivolous lawsuits as a stalking horse for their attempts to enact tort “reform” laws that severely limit the ability of victims and families to seek justice and just compensation—even though fewer than 2% of those impacted by malpractice ever file suit.

I mention all of this because the Center for Justice and Democracy at New York Law School recently issued a comprehensive briefing book “Medical Malpractice by the Numbers” that refutes the misinformation regularly dispensed about the impact lawsuits have on the practice of medicine. Here are few relevant facts:

So-called “defensive medicine” is a myth. Researchers found that physicians order tests because they are focused on patient safety not malpractice risks, or “more focused on not harming patients than on not getting sued.”

Medical malpractice premiums are rising even though claims are dropping. More than 6 in 10 medical groups report their doctors’ malpractice premiums have increased since 2020 even though overall claims throughout the United States have dropped.

Caps on damages harm patients while doing nothing to stop insurance premium price-gouging. Researchers found that while caps drive down insurer costs, premiums do not fall and that by lowering the risk of suit for malpractice … imposing caps is associated with a 16% increase in adverse events.

The United States health care system is severely failing women. Among women of reproductive age in high-income countries, rates of death from avoidable causes, including pregnancy-related complications, are highest in the United States.

The Briefing Book is bursting with facts about they intersection of the legal and medical professions and, take if from your favorite ambulance chaser, is well worth a look.

David Betras: I’ve never filed a frivolous lawsuit…

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Medical MalpracticeFrivolous, adjective: not having any serious purpose or value.

My decades-long legal career has been filled with interesting cases, challenging litigation, and high-stakes trials. But in all my years as a member of the bar, there is one thing I have never done: file a frivolous lawsuit.

That makes me an anomaly in the eyes of the insurance industry, the American Medical Association, the U. S. Chamber of Commerce, and others who claim frivolous lawsuits filed by ambulance-chasing attorneys clog our courts, are responsible for skyrocketing insurance premiums and health care costs, force doctors to practice “defensive medicine” and generally make the world a horrible place to live.

At least that is what they say when they are pushing the passage of tort “reform” legislation that slams the courthouse door in the face of Americans seriously injured or killed because someone else was negligent or reckless.

Along with venting my resentment at having my life’s work denigrated and dismissed as frivolous, a number of things motivated me to once again note that restricting access to the civil justice system makes the world a more dangerous place for our families: The drive to enact tort reform laws is continuing unabated in state legislatures across the nation.

Iowa, Missouri, Texas and Florida, where I will soon be licensed to practice, are among the states attacking victim’s rights. Here in Ohio, an effort to reverse a Draconian cap on non-economic damages is being blocked by the special interest groups and Republicans who imposed the limit in 2004.

A new report issued by the Center for Law and Justice at New York Law School thoroughly debunks many of the myths obscuring the truth about medical malpractice in the U.S. This free-to-download, 172-page publication provides a comprehensive review of the latest statistics about litigation, cost, access to doctors, insurance and patient safety.

I found the following facts to be especially compelling:

  • Experts agree that when cases are filed, they are not “frivolous.” Among the experts is Victor Schwartz, General Counsel of the American Tort Reform Association who admitted in 2011 that “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit…”
  • Litigation and settlements enhance patient safety. Tort reform laws put patients at risk.
  • Neither “tort reforms” nor “caps on damages” lower insurance premiums for doctors.
  • Stripping away patients’ legal rights will not reduce health care costs and may actually increase them.

Finally, a case being litigated by our office underscores how serious and difficult our work is.

While I am unable to discuss the matter in detail, it involves a client who was horribly injured during a medical procedure some time ago. Since agreeing to represent the victim, we have devoted hundreds of hours and tens of thousands of dollars to trial prep and gone toe-to-toe and face-to-face with insurers, defense attorneys and health care providers determined to trivialize our client’s life-altering, lifelong injuries.

Whenever I look at the photos of this client or the hundreds of others we have represented over the years I am reminded of the fact that “frivolous” is the last word that can be used to describe what we do.