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

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. 

Jury finds that 20-year-old died as a result of medical negligence. Betras, Kopp & Markota secures $2,000,000 wrongful death award for family of Megan Clay

From exploding Pintos to out of control Teslas, trial lawyers fight to make cars safer

Attorney David BetrasOn August 10, 1978, three teenage girls, sisters Lyn and Judy Ulrich and their cousin Donna traveling to volley practice on Route 33 in Goshen, Indiana were incinerated when the gas tank in their 1973 Ford Pinto exploded after the vehicle was rear-ended by a van. Technically speaking, they were killed in an auto accident. In reality, however, they were murdered by corporate greed.

That is because Ford executives, including President Lee Iacocca, knew the Pinto was a four-wheeled death trap. Rushed into production in 1970 after only two years of development and testing, the Pinto was Ford’s response to the influx of foreign-made subcompact cars into the American market that began in the late ‘60s. During the design process company engineers sounded alarms about the gas tank which was, for a number of reasons, vulnerable to rupture in low-speed rear-end collisions. They were also concerned because a large empty space behind the backseat allowed the entire back third of the car to crumple, wedging the body and frame tightly against the car doors, making them virtually impossible to open.

Fixing the lethal combination of an exploding gas tank and jammed doors would have cost the company $15 per Pinto. Iacocca’s response: “Safety doesn’t sell.” Not surprisingly, the boss’ attitude permeated the company when attorneys representing people injured and killed in the exploding cars unearthed what became known as the “Pinto Memo.” Prepared to help Ford block new fuel system safety standards being proposed by the National Highway Transportation Safety Administration (NHTSA), the memo’s authors estimated it would cost Ford $11 per vehicle or $137 million to comply with the new regulations. They weighed that against the $50 million in litigation and settlements costs the company would incur if the cars were not made safer. Their conclusion: “the implementation costs far outweigh the expected benefits.

Picture of Tesla that rear ended a fire truck.And so the company continued to manufacture and sell the deadly vehicles for more than a decade. During that time between 500 and 900 people were burned to death. The Pinto was not pulled from the market until the cost of settling lawsuits filed on behalf of the victims and the attendant negative publicity made the car unprofitable.

I was reminded of the Pinto debacle when I read a New York Times article about a series of accidents caused by Tesla’s autopilot system. The story focused on the death of 22-year-old Naibel Benavides who was killed when a Model S in autopilot mode traveling 66 MPH on a city street ran a stop sign and slammed into the parked Chevy Tahoe in which she was sitting. The car’s brakes were never applied.

While a Tesla is as different from a Pinto as the Wright Brothers’ plane is from an F-16, the cause of the crashes that killed the Ulrich’s and Ms. Benavides are the same: placing pursuit of profit ahead of people. Unlike Ford, GM, and other carmakers who use technology to restrict their systems to divided highways where there are no stop signs, traffic lights or pedestrians, Tesla allows drivers to use autopilot anywhere and everywhere. The results are predictable and tragic: the number of accidents involving Tesla’s system is skyrocketing.

And I suspect that lawsuits filed by victims are the only thing that will stop the carnage.

Every time I think of the victims we represent or read reports about companies who place no value on human life, I am reminded of why I went to law school, why I go to work every day, and why we should all fight to preserve the civil justice system that makes our world a safer place to live.

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

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.

Mahoning Matters shines spotlight on area nursing homes, abuse and neglect of seniors

We would like to applaud Mahoning Matters for its in-depth series on area nursing homes. According to the report, conditions at two area nursing homes, Warren’s White Oak Manor and the Oasis Center for Rehabilitation and Healing are especially troubling. Reporters also found that 11 of the 46 nursing facilities located in Mahoning and Trumbull counties were rated below or far below average by the Center for Medicare and Medicaid Services (CMMS). You can view inspection reports for facilities in Mahoning County here. Info on Trumbull County nursing homes may be found here. You can access a list of ratings for every nursing home in Ohio and across the U.S. here. We urge you to review the ratings and reports before selecting a nursing home or assisted living facility for someone you love.

Along with its reports CMMS’ Your Guide to Choosing a Nursing Home or Other Long-Term Service and Supports is an incredibly valuable resource for families and seniors. We recommend that you study the booklet and use its Nursing Home Checklist to help you evaluate and select a nursing home or assisted living facility. You can view and download the publication here. 02174-nursing-home-other-long-term-services

Here are some important factors to consider when you visit a facility during the selection process:
Facility layout, ambiance, residents

  • Is the facility clean and well-lit? Do you detect any odors? Is it attractive to you? Is it warm and enticing?
  • How is the temperature in the building?
  • How are the noise levels?
  • How is the layout of the various floors? Is it easy to get from your room to a common area?
  • Are there handrails in the hallways, rooms, and bathrooms?
  • Are the furnishings comfortable?
  • How do the residents look? Are they well-groomed and dressed?
  • How many residents to one room?
  • What are you allowed to bring when moving in?
  • Is there closet or storage space available? Do they have locks on them?
  • Do the residents have access to a telephone and a television? Is there an extra charge for these services?
  • Is there a secure outdoor area?
  • What are the demographics like? Will your loved one feel like they fit in? Will the staff be sensitive to any non-traditional family arrangements?

Staff

  • What kind of certification does the staff have?
  • What kind of staff are available on a 24-hour-basis?
  • How many registered nurses work there on each shift?
  • How the staff speak to and interact with the residents? Are they friendly and kind? Is the staff respectful of residents’ privacy?
  • How does the staff enter a resident’s room? Do they knock? Do they close the door when helping residents bathe and get dressed?

If a family member or loved one is already in a facility, be on the lookout for these signs of abuse and neglect:

  • Weight Loss
  • Bruises or Welts
  • Frequent Swelling
  • Dehydration
  • Bedsores
  • Soiled Clothing or Bed Sheets
  • Changes In Attitude or Mood

If your loved one appears withdrawn, fearful, or depressed you should be concerned. And if they complain about the treatment they are receiving or say they feel threatened by staff or other residents, listen and then bring the situation to the attention of the home’s administration at once. Then contact us right away by calling 330-746-8484 or 800-877-2889. We’ll listen to your concerns, evaluate the situation, give you our best advice, help protect your loved one, and fight for the justice and just compensation you and your family member need and deserve.