Posts

Second installment of USA Today Ohio News Network series “Vicious: An investigation into how Ohio laws fail thousands of dog attack victims”

/in , , /by

In the second installment of this compelling, though-provoking, and anger-inducing series, Columbus Dispatch reporter Laura Bischoff  recounts the story of 11-year-old Avery Russel who was attacked and severely injured by two pit bulls…

Click here to read/view all the stories in the series.

‘Just tell me if my daughter’s alive.’ After near fatal dog attack, family wants changes

Avery Russell, 11, of Columbus is rebuilding her life after a traumatic attack by two pit bulls on June 11, 2024. Surgeons at Nationwide Children’s Hospital performed a nine hour emergency surgery just after the attack. Photo by Barbara J. Perenic of the Columbus Dispatch.

Drew Russell could barely understand her daughter’s friend on the phone that day. The panicked girl tried to relay that her only child, Avery Russell, had been bitten by dogs.

The 11-year-old girl passed the phone to a neighbor, a man with little information about the chaotic scene. He handed the phone to Reynoldsburg Police Officer Nicholas Lewis.

“Just tell me if my daughter’s alive,” Drew said.

“I can’t tell you that,” Lewis told her. Then he added: “Don’t come here. Meet us at Children’s.”

Drew flew down I-70, hitting 120 miles an hour and praying a cop would pull her over and take her to Nationwide Children’s Hospital in Columbus.

Avery is her everything. A sweet, smart and loving 11-year-old girl with a knack for computer coding and math.

By the time Drew ran into the trauma bay, teams of nurses, doctors and paramedics swarmed her child. A chaplain, Rev. Kelsie Meyers, stepped in front of Drew. The look on Meyers’ face told Drew that it was bad. Real bad.

“No one had told me anything. So, I still had no idea the severity of the situation,” Drew said. “Nothing could have prepared me for what I saw.”

Two pit bulls, Apollo and Layla, chewed off most of Avery’s ears, ripped into her nose, left a huge gouge above her left eye and punctured her forehead and shoulder. Her face looked like ground hamburger.

“My reaction was like, ‘Oh, my God. That’s not my child!'” Drew recalled. “I was fully in shock. I could never have fathomed that that call would lead to that.”

Avery’s left eye was swollen shut, so Drew leaned in close to her right side. She wanted Avery to know she was with her.

“If you can hear mommy’s voice, squeeze my hand,” Drew told her 11-year-old, fighting for her life.

Avery gave her mom’s hand a little squeeze.

Before surgeons began what would be a nine-hour operation, putting Avery’s face back together like a jigsaw puzzle, Drew pleaded with them:

“Just save my daughter. Just save her. Save her. Just please save her and bring my baby back to me.”

‘Our whole life has literally been flipped’

Three months after the brutal mauling, Drew is steaming with anger. She’s mad at the dogs’ owner. She’s upset with the plodding pace of prosecution.

She’s angry that one of the two dogs is still alive. She calls it shameful that the dog owner, Stephanie Ayers, asked the court to give her back her dog.

“My daughter almost died. And our whole life has literally been flipped. Nothing looks the same as it did six months ago,” she said.

Drew can’t sleep. Every time she shuts her eyes, she sees Avery’s torn and bloody face. She quit her job and closed her nail salon so she could care for Avery.

The calendar is packed with therapy appointments: physical, speech, occupational, feeding, trauma, burn and scar. Even after four surgeries, Avery still needs new ears and a new nose. Everything so far has been reconstructive, not cosmetic.

The mother mourns the loss of her daughter’s happy childhood. The physical scars, though extensive, pale in comparison to the mental trauma.

The fear, flashbacks and PTSD are constantly lurking, ready to erupt. Dogs in public bring on intense panic for Avery. Drew can’t even say the word “dog” around Avery.

Even the best laid plans to protect Avery get derailed. Drew and Avery’s mental health team wanted to prepare her before the child would see the damage to her face. But Avery caught a glimpse of herself in the bathroom mirror long before she was ready. Avery didn’t recognize herself.

Now when she looks in the mirror, she says: “Mommy, how long do I have to look like this? Why did this have to happen to me? What did I do to deserve this?”

Drew has no good answers. “I feel so helpless in this whole situation because there is nothing I can do to make it better.”

Therapy at Nationwide Children’s Hospital

Avery grabs a red foam rod that looks like a Twizzler and uses both hands to twist it into opposite directions. Her slender wrists flex as occupational therapist and certified hand therapist Jim Falk watches. He runs her through more progressive resistance exercises that will help her with everyday tasks, like opening a bottle, drinking from a glass and tying her hair back into a ponytail.

When Drew intervenes too much, Avery gives a drawn-out groan. “Moooooom.”

“These are essential life skills, especially with all that hair,” Drew says.

Falk, who focuses on hand therapy, runs Avery through more tasks. “Her strength is actually going up, even though she’s getting tired.”

“I’m proud of you, Boo,” Drew tells her.

Falk then gives Avery a head nod toward the basketball half-court that is part of a new physical therapy area at Nationwide Children’s. “You ready?”

She smiles and skips over to the bin of basketballs. She dribbles one to the free-throw line. Basketball is her true love. Avery can’t wait for the school basketball season to start up again in November. It’s something to work toward.

Avery hurls the ball toward the basket, hitting the rim but missing. She fluidly makes a couple of layups and returns to the line. Avery sinks a couple of shots, grinning a crooked smile.

Two months before this October appointment, Avery couldn’t throw the ball anywhere close to the rim. She just didn’t have the strength and stamina.

Avery bounds through the hallway and lobby. By now she knows her way through the sprawling building to her next two appointments: speech and physical therapy.

“How was school today? Any trouble being understood in the classroom over the last few weeks? And how do you feel about your volume when you’re talking?” the speech therapist asks Avery.

Avery, suddenly quiet and shy, gives the therapist a so-so hand signal. The two go over strategies to increase speech fluency and volume.

She sounded like a mild mouse when she awoke from surgery and hospital staff removed the intubation. The speech therapist worked with Avery, helping her re-learn how to chew and eat. Still, lasting nerve damage means she can’t feel her nose running or when she has food on part of her face.

Drew said Avery, who has autism, has always been a quiet talker but had made strides toward speaking up. Then the attack and trauma set her back. Drew tells her daughter she wants her to speak up. “You have important things to say.”

In her physical therapy session, Avery is keen to beat her own records. Her competitive streak shows. On a one-leg bridge pose, she starts to get shaky.

“You got it, Avery, you got it. You’re already past your high score,” her therapist says.

“I don’t even know my high score,” Avery says.

“It’s 17 seconds. You’re at 39 now.”

Avery drops her butt to the mat, satisfied.

The session marks her last one over four months. The therapist tells Avery to do her PT exercises at home. “You’ll be a better basketball player.”

Avery may be done with PT for now, but she faces years of procedures and rehab.

“I was just told that she’s probably going to have to get what’s left of her ears removed so that they can give her new ones,” Drew said. “So, yeah, she has a long road ahead. Probably going to take years before she’s back to herself, and she probably never will be back to the way she was before.”

Drew is hoping that a year from now, Avery will have a new nose and ears.

“In 10 years, I’m hoping that this becomes a distant memory and that she is able to be an advocate and use her testimony to help other kids get through traumatic things,” Drew said.

Two pit bulls, a power washer and a cop

Drew rarely let Avery go on play dates with anyone but close friends and family. She was protective of Avery ever since doctors diagnosed her with autism spectrum disorder around age 7.

But on the day of the attack, Drew dropped Avery off at her friend Kiera’s house around 8:45 a.m. and headed to work in Westerville. Kiera and Avery are friends from school.

Jessica Henry, Kiera’s mom, called Drew that afternoon to let her know she’d be taking the girls to her cousin’s place in Reynoldsburg. Drew didn’t know about the four pit bulls at the house. She didn’t know that the Reynoldsburg neighbors considered the dogs aggressive and menacing.

And Drew didn’t know that Ayers’ dogs previously had bitten two of Henry’s children − one in the arm, another in the face − less than a year before this. Ayers and Henry knew, according to the police report, but they still had Avery and Kiera over for the play date.

That afternoon, the girls went inside the house to use the bathroom. That’s when the two adult dogs and two puppies cornered Avery, barking and growling at her. Henry said she placed her body between Avery and the two pit bulls but when she tried to open a door to let Avery slip out, one of the dogs bit Henry in the forearm.

Terrified, Avery bolted to the backyard. The dogs chased after her.

Henry said when she tried to save Avery, the dogs attacked her − biting Henry’s arms, chest, shoulder, ear and throat. They took off a chunk of her ear.

“They got my throat and I thought for sure I was about to die. My daughter was standing there, she watched it,” said Henry, 37, a mother of five.

Working from home that day, Kevin Messenger heard the kids playing and dogs barking in the yard next door. It was part of the soundtrack of the neighborhood. But something wasn’t right this time.

Looking out the window, he said he saw one of the pit bulls violently yank a woman in the backyard. Most of the kids scattered. Two pit bulls latched onto Avery, tugging her like a rag doll.

Messenger later told police in a statement: “The neighbor dogs have always been kind of aggressive: Apollo growling at me across the fence, both adult dogs attacking and damaging the fence in between us and even causing some minor injuries to my own dog.”

Neighbors called 911 and pounded on the wooden privacy fence. A child threw dog treats into the yard, hoping to distract them. The dogs dragged Avery deeper into the backyard.

Zachary Ruff, who was power washing a nearby house, heard children screaming and saw two pit bulls chewing on Avery’s face. He dashed back to his equipment, grabbed the hose and sprayed water at the dogs. His quick action interrupted the grisly attack.

Just outside the fence, a breathless woman frantically told Reynoldsburg Police Officer Scott Manny: “One of the kids isn’t moving. The adult is moving. Don’t know where the dog is.”

Manny called in an “officer in trouble” signal, glanced through the slats in the fence, unholstered his Glock and shoved open the gate. A blast from the power washer caused the large, tan pit bull to back off of Avery. It charged toward Manny.

The officer squeezed off three quick shots, hitting the dog and sending it back into the house, yelping. He closed the door to the back porch.

“Radio, I got two down in the back yard in bad shape. One dog shot. Inside the house,” Manny told dispatchers.

Shaken by the grisly scene, the officer donned latex gloves as Avery whimpered. Her face was so ripped apart that Manny couldn’t tell if she was a boy or girl.

“Most of her face was either torn off or torn open,” he wrote in his report later.

He scooped the girl up and carried her to the front of the house, where Truro Township paramedics awaited.

“We didn’t know what was going on. It was so chaotic. Officer Manny came out with her in his arms,” said Truro Twp. Firefighter-Paramedic Mick Pfaff. “We got her in the truck and – whoosh – off to the hospital.”

In his entire 17-year career, Pfaff said he’d never seen such severe injuries on a child.

“It’s never easy to see a child suffering like that.”

Pfaff and his colleagues started a GoFundMe for Drew and Avery. He later visited Avery at Nationwide Children’s Hospital, after surgeons spent nine hours rebuilding her face. Pfaff said the repairs were nothing short of amazing. “If you’d seen where she was that day, you’d be shocked.”

After the attack, Ayers, the dog owner, paced the sidewalk outside her house. A police body camera captured Ayers showing more concern for her dogs than for Avery, who at the time was in critical condition.

“Like do I think this is right? F— no. Am I okay with any of this?,” Ayers said. “No. I’m not saying that I think that my dog did the right thing. None of that. But my dog doesn’t deserve to be sitting there f—— suffering. The little girl ain’t laying there suffering still.”

Now Avery’s days are marked by surgeries, medical appointments, sixth-grade classes, basketball games and questions about her future.

“My daughter’s whole life has changed. She is 11 years old. She has to live with this her whole life,” Drew said.

Drew is more worried about Avery’s mental health. Already, she sees her self-confidence diminished. And high school is just around the corner.

“My prayer is that she’ll look somewhat normal by the time she’s good and ready to go to high school. Because that’s when kids get the meanest. And that’s when your hormones start to develop and your emotions are all over the place,” Drew said. “As her mom, I worry about how she is mentally.”

A demand for reform

Drew hired Columbus attorney Bill Patmon to find out what happened, press for criminal charges, pursue a civil case and advocate for changes in state law.

They plan to ask lawmakers to adopt reforms that they believe will bring more accountability for owners and justice for victims and deter irresponsible behavior by dog owners.

“If we don’t fight or try to effect some kind of change, then what’s it all for? What’s all the suffering for? Because it’s just going to keep happening,” Drew said.

Their starting point: allow felony charges against dog owners who knew their animals could be dangerous, enhance penalties when children are the victims, require insurance coverage for dog ownership, expand responsibilities for local dog wardens, add harsher penalties in cases of serious injuries and mandate euthanasia for dogs after the first kill.

Currently, violations of Ohio’s dog laws are misdemeanors, punishable with fines and restrictions for handling the dog in the future. The fines start at $25 and putting a dog down isn’t mandated until it’s killed a second person.

“As a human, you go out and you kill someone, you’re mandated by law to spend the rest of your life in prison, right? You don’t get the opportunity to kill a second person. So, why would we allow an animal to do that? That’s crazy. And maybe that’s why the other dog hasn’t been put down,” Drew said.

After the attack on Avery, neighbors told the cops about how they’d seen the dogs acting aggressively in the past. But none of that got reported to police or the dog warden. That makes it harder for victims of serious attacks to argue that the owners should face more consequences.

“They’re saying because these dogs have never been reported as vicious, they can’t label them as such. And I just think, excuse my language, that’s a crock of s—,” Drew said. “Just look at her….They didn’t just nip at her little leg or her arm. No, they went straight for her jugular. They attacked to kill her.”

Jessica Henry lived with her cousin and the dogs for several months. Stephanie Ayers, the cousin, has custody of two of Henry’s five children. Henry knew the dogs to be territorial and barked at strangers but said she didn’t know that the dogs had bitten her two kids who live with Ayers.

Ayers and her attorney have declined comment.

Now, Henry wants Ohio’s dog laws changed to impose more serious penalties when dogs viciously attack people, including automatic euthanasia. “It’s a dog. If it did it once, it’s going to do it again and next time, somebody may not survive.”

Drew acknowledges that law changes are unlikely to fix all the problems of irresponsible dog ownership. But she said: “If you don’t try and start somewhere, then it’s just going to remain the same.”

Other attorneys who take dog bite cases say Ohio shelters should be required to maintain and share better records on dogs’ histories before adopting them out to new owners.

Patmon knows his way around the Ohio General Assembly and dog laws. His father served two terms in the Ohio House and carried a bill to make animal cruelty and abuse a felony.

Drew finds it paradoxical that it’s a felony to abuse a pet but not a felony for a pet to disfigure a child.

“I have to see this every time I look at my baby. I barely recognize her,” Drew said. “It’s not fair, it’s not right, it’s not okay.”

No ‘picture day’ for Avery

Drew suggested homeschooling Avery for sixth grade this year. Avery insisted on going back to class and being with her friends.

St. Catharine School is like a protective nest for Avery. Most of her classmates and a few teachers visited her during her month in the hospital.

Still, the new Avery isn’t the old Avery. She didn’t want to go to picture day at school. Drew gave her a mental health day. No point in making the disfigured child watch all her friends enjoy smiling for school pictures.

“Rather than put her through that and to cause more trauma onto the trauma, I let her stay home. She got a free day.”

Avery’s father has never been in her life and still isn’t, even after Drew told him about the attack, she said. But Drew’s parents, sister, cousins, close friends and the “Super Moms” at Avery’s school support them at every step.

“It’s very hard for me to ask for help and admit when we need it. I’m working on it and getting a bit better,” Drew said. “This situation has taught me that, but it’s really easy to have all the support in the world and still feel alone.”

Laura Bischoff is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

Corporate greed, regulatory failures responsible for hundreds of deadly big rig accidents each year, Betras Kopp is fighting to make the roads safer by holding truckers accountable

/in , , , , , /by
Attorney David Betras
BK Managing Partner David Betras

Since MahoningMatters offered me the opportunity to grace their website with this column each week, I’ve addressed everything from COVID to corruption, distracted driving to democracy and dozens of topics in between. But if pressed to pick the most important subject I write about, is highlighting the role personal injury attorneys and the civil justice play in saving lives, preventing injuries, and making our nation and our world safer places to live, work, travel, and play would be numero uno on my list.  

Over the years I’ve shined a spotlight on exploding Pintos, Boeing’s fatally flawed Max 8, lethal medical devices and drugs, cigarettes, and myriad other products and practices that sowed carnage, death, and destruction across the land. As my regular readers know, there is a common thread that runs through these largely avoidable tragedies. They were all the result of corporate greed, cost-benefit analyses that placed corporate profits above the value of human life, regulatory failures, secrecy and lies, suppression and persecution of whistleblowers, as well as influence peddling and lobbying by business interests and trade groups.  

And there is one additional point of commonality: the human toll associated with each of these deplorable episodes: the number of people hurt and killed would have been exponentially higher if lawyers like me, my partners, and the other members of the trial bar had not taken on the difficult and expensive task of suing the largest corporations in the world and winning large settlements for victims and families that forced businesses to make products safer or remove them from the market altogether.

I’m revisiting the topic today because America’s Dangerous Trucks, a recent episode of PBS’ outstanding Frontline documentary series clearly shows that corporate greed and the other factors that have put Americans needlessly at risk for decades are at play in the trucking industry. The film opens at the side of the road near the spot where 16-year-old Riley Hein burned to death when his car slid under and was pinned beneath the back wheels of a 40” trailer.

After losing Riley, his father Hunter learned what we do in the course of the documentary:  Riley and the hundreds like him who perish in what are known as “underride” crashes each year did not have to die. Those killed include Marianne Karth’s daughters AnnaLeah and Mary who lost their lives when the car in which they were riding was pushed under one truck after being hit by another. In the wake of the tragedies the families found that the trucking industry had been battling against underride crash safety measures proposed by the National Highway Transportation Safety Administration (NHTSA) since 1981.

They also discovered that NHTSA, like the Federal Aviation Administration (FAA) which is responsible for aviation safety, is a captive agency controlled and dominated by the very industries it is charged with regulating, and that NHTSA uses an economic formula to determine whether to impose new safety standards. If the cost equals more than $12.5 million for each life saved, it won’t be adopted. That’s the same type of cost-benefit analysis Lee Iacocca and Ford made when they decided to sell exploding Pintos.

I hope you share my disgust with the fact that the price of a human life was calculated by the government agency that is supposed to keep our highways safe rather than a profit-driven corporation. 

Which is not to say that the trucking industry and its trade group, the American Trucking Association (ATA) don’t have blood on their hands. Not only did they stop NHTSA from strengthening rear and side collision guards that would reduce the severity of underride crashes—a step that would add less than $250 to the cost of a trailer, they have kept truck safety legislation bottled up in Congress, and launched a successful campaign to convince state legislatures across the county to enact laws that will make it more difficult to hold truckers accountable for the deaths and injuries that occur when big rigs collide with passenger vehicles and motorcycles. Yes, it’s the big rig version of tort reform.

At the end of the film, we learn that the Hein’s sued the company that owned the truck that caused Riley’s death. In 2019 a jury awarded them $19 million—a figure that caught the attention of trailer makers and truckers, many of whom, in yet another demonstration of the power of the civil justice system, began installing improved rear and side underride guards.

Despite that important victory, Hunter Hein remains concerned. “You know, Riley was killed in 2015. We’re seven and a half years into this fight. It’s hard to just sit and watch and wait and hope that NHTSA will do the right thing. It’s really frustrating.”

“It’s very hard to get this agency to actually adhere to their mission to save lives. I mean, I’m an optimistic person, but I’m cautiously optimistic. I still think that the industry has a lot of power and a lot of undue influence with NHTSA. And it is incumbent, I think, upon all of us advocates and people that are very concerned about how many people are dying from side underride crashes to keep the pressure on NHTSA.”

I agree, and we should all demand that the agency free itself from the influence of the auto and trucking industries and begin to do its job.

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

/in , , , , , , , , , /by
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. 

results of car and motorcycle crash

Betras, Kopp & Markota observes Motorcycle Safety Month by offering life-saving tips

/in , , /by

The weather is breaking and that means people across the Valley are breaking out their motorcycles. Each year at this time we re-post this video from the Motorcycle Safety Foundation (MSF), AAA, law enforcement, and the National Highway Safety Foundation: https://vimeo.com/543457795 and important tips for car and truck drivers who aren’t used to seeing bikers on the road.

The tips are critically important because statistics show car and truck drivers are at fault in 60% of the accidents involving a bike and another vehicle.

1. Take an extra moment to look for motorcycles. Because of its small size, a motorcycle can be easily hidden in a car’s blind spots, so check — then check again — before changing lanes or making a turn.

2. Predict a motorcycle is closer than it looks. A motorcycle may look farther away than it is because of its small size, and it may be difficult to judge a motorcycle’s speed. When checking traffic to turn at an intersection or into (or out of) a driveway, predict a motorcycle is closer than it appears.

3. Keep a safe distance. Motorcyclists often slow by rolling off the throttle or downshifting, thus not activating the brake light, so allow more following distance, about 3 to 4 seconds.

4. Understand lane shifting. Motorcyclists often adjust position within a lane to be seen more easily and to minimize effects of road debris, passing vehicles, and wind. Understand that motorcyclists adjust lane position for a purpose, not to show off or to allow you to share the lane with them.

5. See the person. When a motorcycle is in motion, see more than the motorcycle, see the person under the helmet, who could be your friend, neighbor, or relative.

Bikers please stay safe and if you or someone you know is involved in a motorcycle accident, contact the local lawyers who will fight to win the settlement you need and deserve: Betras, Kopp & Markota.

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

/in , , , , /by
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.

The weather outside is frightful so now is the time to check out BKM’s winter driving tips…

/in , , , , , , /by

Just in case you haven’t looked outside yet, our “Three Ps” of safe winter driving tips will be extremely relevant and useful over the next couple of days.

Please be careful on the roads, and remember, if someone who isn’t driving safely runs into you or a member of your family, contact Betras, Kopp & Markota right away to arrange a free consultation to discuss your accident. Our experienced team of investigators and attorneys will evaluate your case, provide rock-solid advice, and fight to get the money your family needs and deserves.

So, call the LOCAL law firm big enough to win millions from the insurance giants: Betras, Kopp & Markota.

SAFETY ON WINTER ROADS

Bad roads can lead to bad wrecks. Driving on snow-covered, icy roads is tricky—even for those of us who have been doing it for decades. In order to help drivers avoid accidents, the National Highway Transportation Safety Administration and OSHA have developed the “Three Ps” of winter driving safety:

PREPARE for the trip; PROTECT yourself; and PREVENT crashes on the road.

Some of the advice is pretty obvious—like making sure all the ice and snow is scraped off all your windows before you head down the road. But even though common sense dictates that being able to see is critical to safe driving, we’ve all seen people weaving around as they peer out of the very small space they’ve cleared on their windshield that looks like a porthole on a tank’s gun turret. There’s only one difference: a car isn’t a tank rolling through woods, it’s a car lurching down a road crowded with other vehicles that can be hit because the driver can’t see them, lane lines, traffic signals or stop signs. So let’s start with the obvious, clear off all your windows, it’s great way to prevent collisions. We’re talking to guys in particular, because as the graphic shows, men are a lot more likely to drive in cars with ice-covered windows then women…

Here’s rest of NHTSA’s “Three Ps:

PREPARE

Maintain Your Car: Check battery, tire tread, and windshield wipers, keep your windows clear, put no-freeze fluid in the washer reservoir, and check your antifreeze.

Have On Hand: flashlight, jumper cables, abrasive material (sand, kitty litter, even floor mats), shovel, snow brush and ice scraper, warning devices (like flares) and blankets. For long trips, add food and water, medication and cell phone.

Plan Your route: Allow plenty of time (check the weather and leave early if necessary), be familiar with the maps/ directions, and let others know your route and arrival time.

Practice cold weather driving when your area gets snow — but not on a main road. Until you’ve sharpened your winter weather driving skills and know how your vehicle handles in snowy conditions, it’s best to practice in an empty parking lot in full daylight. Note our emphasis on the word “empty.”

Know what your brakes will do: stomp on antilock brakes, pump on non-antilock brakes.

Stopping distances are longer on water-covered ice and ice.

Don’t idle for a long time with the windows up or in an enclosed space.

PROTECT YOURSELF

Buckle up and use child safety seats properly.

Never place a rear-facing infant seat in front of an air bag.

Children 12 and under are much safer in the back seat.

Stopped or Stalled? Stay in your car, don’t overexert, put bright markers on antenna or windows and shine dome light, and, if you run your car, clear exhaust pipe and run it just enough to stay warm.

Don’t idle for a long time with the windows up or in an enclosed space.

PREVENT CRASHES

Drive slowly. It’s harder to control or stop your vehicle on a slick or snow-covered surface. On the road, increase your following distance enough so that you’ll have plenty of time to stop for vehicles ahead of you.

A word of caution about braking: Know what kind of brakes your vehicle has and how to use them properly. In general, if you have antilock brakes, apply firm, continuous pressure. If you don’t have antilock brakes, pump the brakes gently.

Stay calm and ease your foot off the gas while carefully steering in the direction you want the front of your vehicle to go if you find yourself in a skid. Stay off the pedals (gas and brake) until you are able to maintain control of your vehicle. This procedure, known as “steering into the skid,” will bring the back end of your car in line with the front.

Drugs and alcohol never mix with driving.

Texting while behind the wheel is especially dangerous in winter conditions. Put your phone down.

You can check out NHTSA’s interactive winter driving safety website by clicking here.

Here’s one more tip: even though you do everything right, someone who does just one thing wrong in icy conditions can cause an accident in the blink of an eye. If you’re involved in a wreck caused by a careless or distracted driver, contact Betras, Kopp & Markota BEFORE you talk to an insurance agent or adjuster. We’ll arrange a free consultation that will give us the opportunity to evaluate your case and provide you with sound advice that will protect your rights and your ability to secure justice and the financial settlement you and your family needs and deserves.

New distracted bill is overdue, will save lives and make Ohio roads safer for all

/in , , , , /by

Betras, Kopp & Markota has long been a leader in the battle to end the carnage caused by distracted driving. That is why we are pleased to commend the members of the Ohio General Assembly for passing and Governor Mike DeWine for signing SB 288, which includes provisions that will significantly strengthen the penalties for using, holding, or physically supporting an electronic wireless communications device (EWCD)–yes that’s the new fancy acronym for “cell phone”–while operating a motor vehicle.

The new law makes using an EWCD while behind the wheel a primary offense. That means a law enforcement officer has the right to pull over and ticket any driver seen using, holding or physically supporting a cellphone. Officers may also follow vehicles that are swerving or drifting from lane to lane to determine if the driver is using an EWCD. Until now, texting while driving was a secondary offense which meant drivers could not be stopped just for using a cell phone unless they were under the age of 18.

Governor DeWine has been imploring members of the legislature to enact the law since it was introduced in 2021. “You’ll never have a chance to vote on a thing that is as clear-cut that you will be saving lives as when you vote ‘yes’ on it.”

During the signing ceremony for SB 288 DeWine said “Right now, too many people are willing to risk their lives while behind the wheel to get a look at their phones. My hope is that this legislation will prompt a cultural shift around distracted driving that normalizes the fact that distracted driving is dangerous, irresponsible, and just as deadly as driving drunk.”

We share that hope because since 2017 people using EWCDs while driving in Ohio were involved in 73,945 accidents including the 31 fatal crashes and 258 that resulted in serious injuries in 2022 alone. The real tragedy: each and every one of those collisions was 100% preventable.

Here is what you need to know about the new law:

It goes into effect on Monday, April 2, 2023. For the first six months officers may only issue written warnings for violations.

As noted above, the law prohibits drivers from operating a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic while using holding, or physically supporting with any part of the person’s body an electronic wireless communications device. In essence this means drivers may not input information or type on a screen while driving.

There are a number of commonsense exceptions written into the law. Drivers may:

Call 911 or contact a health care provider or hospital in case of emergency;

Use a EWCD while parked outside a lane of travel or stopped at a red light or on a road or highway that has been closed due to an emergency situation;

Hold a device up to their ear during a call or use a speakerphone;

Use a navigation service as long as the driver is not inputting destinations or information;

Begin or end a call with a single swipe of the screen;

Store a device in a holster, holder, harness, or article of clothing.

Violations carry an escalating series of fines:

Up to $150 and two points on your license for the first offense.

Up to $250 and three points on your license for a second offense within two years.

Up to $500, four points on your license and a 90-day driver’s license suspension for a third offense within two years.

We hope none of you ever has to pay a fine because that means the law is working and you are not putting yourself, your passengers, other drivers, and pedestrians at risk by driving while distracted.

And just in case you’ve forgotten why we care so much about this issue and fight so hard to end the preventable carnage caused by distracting driving, we urge you to view this video: https://youtu.be/Uc7nviub_Tk

Now is the time to pass tougher distracted driving law, here’s how you can help

/in , , , , /by

Now that our completely fraud free election is over, the members of the Ohio General Assembly have left the campaign trail and are now in Columbus conducting a “lame duck” session.  I do not want to be an alarmist, but if past performance is any indicator of future results, we should all be very, very afraid.

Why?

Because for the next two months Capital Square in Columbus will be a nesting ground for lame duck legislators who were defeated at the polls, are being forced out of office by term limits, have switched to the House from the Senate and vice versa, or have just been reelected and will not face the voters for two years. That means there are now 132 people running around the Statehouse who are totally unaccountable for whatever it is they decide to do.

Attorney David Betras
BKM Managing Partner
David Betras

As you might imagine, the opportunity to engage in mischief and mayhem is nearly unlimited. And, as history clearly demonstrates, it is an opportunity our representatives often seize by ramming unpopular or controversial laws through the legislative sausage making machine at a dizzying pace.

To absolutely no one’s surprise, the GOP majority’s lame duck agenda which consists of bills that would never have seen the light of day before Ohioans went to the polls, is truly frightening and disturbing. Rest assured; I will have more to say about that in the weeks ahead. But today, I want to shine a spotlight on a positive development that occurred during the first week of lame duck: the overwhelming passage of HB 283 which prohibits, in most circumstances, a person from using, holding, or physically supporting with any part of the person’s body any electronic wireless communications device (EWCD—what used to be commonly referred to as cell phones).

Along with stiffening penalties for distracted driving, HB 283 makes violating the law a primary offense, which means law enforcement may now stop and ticket distracted drivers before they cross over three lanes of traffic and hit a telephone pole, blow through a red light and cause a multi-car collision, or run down pedestrians or cyclists on the side of the road. That is why we and other warriors in the battle to end distracted driving enthusiastically supported the legislation when it was introduced in February of 2021.

Since then, Allstate, Nationwide, the American Property and Casualty Insurance Association, the Ohio Chamber of Commerce, the Ohio Highway Patrol, General Motors, the National Transportation Safety Board, the AAA, the Ohio Trucking Association, and more than 20 other groups and individuals including Douglas and Cathy Richeson, Sharon Montgomery, and Dom Tiberi all of whom lost loved ones in distracted driving crashes, have testified in favor of the bill.

Yet, despite broad-based support from the business community and the compelling testimony of grieving families HB 283 languished in the House Criminal Justice Committee for more than a year because Bill Seitz of Cincinnati, one of the most powerful Republicans in the House, was opposed to it. As a result, hundreds of Ohioans continued to be involved, hurt, and/or killed in accidents that never should have happened.

This week Seitz finally agreed to free the bill from committee after adding amendments proponents would only have accepted during lame duck. Seitz effectively blackmailed them into capitulating because he knew backers of the bill did not want to begin the fight anew when the next session of the General Assembly convenes in 2023.

Although Seitz succeeded in weaking the legislation, it will make Ohio the 31st state in the nation to ban the use of EWCDs while driving and make violations a primary offense. The law represents an important first step toward making Ohio a safer place to drive, walk, and bike.

But it is a step we will take only if HB 283 passes the Senate.

And that’s a bid if. Senate President Matt Huffman who is arguably the most powerful Republican in Ohio, opposes the legislation on “civil liberty” grounds. I guess he believes distracted drivers should continue to have the civil liberty to drive around killing and maiming their fellow Ohioans.

Huffman did say, however, that he will allow the legislation to come to a floor vote if there is a “groundswell of support for it” among the members of his caucus, two of whom Sandra O’Brien and Michael Rulli represent the Valley. So here is an assignment for all of you who would like to help the BKM legal team save some lives: Call or email them both and ask them to ask Sen. Huffman to bring HB 283 to the floor.

You may reach Sen. O’Brien by phone at (614) 466-7182 or by email at https://ohiosenate.gov/senators/obrien/contact. Call Sen. Rulli l at (614) 466-8285 or shoot him an email at  https://ohiosenate.gov/senators/rulli/contact

Thanks in advance for your help, getting this important bill passed will give us all something to be extremely grateful for this holiday season and for years to come.

Using the civil justice system to hold perpetrators accountable for criminal acts

/in , /by

Attorney David BetrasAs many of you know, I am representing Cameron Morgan, the 23-year-old woman who was punched in the face and then dragged into the street by Andrew Walls in Akron on Feb. 26. The incident garnered nationwide media attention hours after video of the racially motivated attack went viral.

Since then, Walls has admitted to being a member of the Proud Boys, an organization identified as an extremist hate group by the Southern Poverty Law Center and as a terrorist entity by the Canadian government. In what I can only characterize as a sad commentary on the current state of our society, Cameron and her father David, who is a Youngstown native, have been attacked by the Proud Boys and their supporters.

Despite being the targets of threats, intimidation tactics and racial slurs, Cameron and David remain resolute: Walls, along with anyone and everyone who aided and abetted him, must be held accountable for their actions.  In addition to the criminal offenses, Walls already faces the possibility that he will be charged under state and/or federal hate crime statutes — as he should be. Part of that accountability will include me keeping my promise to sue everyone who is any way responsible for the assault “into oblivion.”

Fortunately, a little-known and seldom-used provision of Ohio law empowers me to do exactly that. Section 2307.60 of the Ohio Revised Code enables “Anyone injured in person or property by a criminal act… [to] recover full damages in a civil action … ” including punitive damages, exemplary damages and attorney’s fees. For those of you who did not go to law school and are wondering: Exemplary damages are awarded when a defendant’s conduct is found to be willfully malicious, violent, oppressive, wanton or grossly reckless. Anyone who has seen the disturbing video will agree that Walls’ actions certainly check all those boxes. Here is one of the best features of the law: According to the Ohio Supreme Court decision in Buddenberg v. Weisdack, a civil cause of action for injuries based on a “criminal act” may be brought under this provision, even if the offender has not been convicted criminally.

In other words, I do not have to wait for Walls’ case to move through the criminal courts. I may sue him now — and believe me, I will. The other important thing to know about the provision is that I can also use it to sue others who may have committed criminal acts and are in some way related to the incident, even if they are never charged with or convicted of a crime. All I need to do to prevail in a civil proceeding is prove that the defendant committed a criminal offense that harmed my client.

I have in the past written about the many ways trial lawyers have made our nation and world safer by filing lawsuits that forced corporations to remove dangerous cars, drugs, medical devices and other products from the marketplace. Now, thanks to a courageous young woman and her father, I will have the opportunity to use the civil justice system to punish racism, hate and violence. The prospect makes me proud to be an attorney and a citizen of the greatest country in the world.

The Cameron Morgan Attack: Hate and those who spread it, are tearing our nation apart.

/in /by

During my 30-plus year career as a criminal defense and personal injury attorney I have viewed many disturbing images: autopsy photos, disfiguring injuries resulting from dog bites, surveillance cam footage of a murder, third degree burns suffered in an industrial accident. You name it, I have seen it. But few of those images have been […]

Read more