Posts

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

/in , , , , , , /by

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.

Can employers ‘out’ unvaccinated employees?

/in , , , , /by

Attorney David BetrasRecently one of our Facebook followers messaged us this important and interesting question:

“Can an employer ask workers if they have been vaccinated for COVID-19 and are they allowed to ‘out’ those who have and have not?”

Like most employment issues related to the pandemic, the answer to that straightforward question is complicated, multi-faceted, and evolving. But I am certainly willing to take a shot at responding.

I want to preface the discussion by reminding everyone of two critically important facts: First, employers are generally permitted to require all workers to be vaccinated. Second, workers who refuse may be disciplined and/or fired unless they are protected by a union contract, have a disability or object to getting a shot due to sincerely held religious beliefs.

Employers must offer people who fall into the latter two categories “reasonable accommodations” that will enable them to continue to work.

Now let us consider whether the Americans with Disabilities Act (ADA) permits employers to ask workers if they have been vaccinated. According to guidance issued late last year by the Centers for Disease Control and Prevention as well as the Equal Employment Opportunity Commission, the answer is yes as long as inquiry does not elicit information about a disability that would trigger the ADA’s requirement that all inquiries be “job-related and consistent with business necessity.”

Tip for employers: You do not want to do that.

To avoid running afoul of the ADA, employers should do the following when requesting vaccination information:

• Design the request so it is not likely to elicit information about a disability;
• Do not ask why a worker was not vaccinated;
• Warn employees not to provide any medical information when providing proof of vaccination.

Employers also have the right to ask for any number of reasons: to verify compliance with a vaccine mandate; prove that an employee has qualified for a vaccination incentive; to determine if an employee can return to work on-site; to comply with a customer’s demands that a vendor’s workforce has been vaccinated; or to inform the public that workers at a restaurant, store or other type of business that involves interaction with patrons have received their shots.

In fact, I can envision “Guaranteed COVID-19 Free” becoming a popular advertising slogan in the months ahead.

Now that we have a basic understanding of what employers may do, it is time to address what they may not do: They cannot “out” or identify workers who have or have not been vaccinated.

While it is generally legal to ask the question, it may be considered a medical inquiry which would make each employee’s response confidential medical information protected under statutory and common law. The law also obliges employers to protect workers’ personal and health information including their vaccination status.

I urge employers to take all steps necessary to meet that obligation.

As I mentioned at the beginning of the column, COVID-19 employment law is evolving rapidly so businesses and workers should protect themselves by keeping up to date with their rights and obligations.

While the pandemic is, hopefully, coming to an end, it may take years to resolve the legal issues and lawsuits it has spawned. I will do my best to keep my readers informed.

BKH’s new procedures for office visits will keep clients, employees safe

/in , , , /by

As an essential business, Betras, Kopp & Harshman has been open and serving clients during the COVID-19 crisis. We will continue to be here for you throughout the emergency.

On Monday, May 4 we are instituting the following procedures for office visits:

Anyone visiting the office must schedule an appointment in advance by calling 330-746-8484 or 800-457-2889.

All visitors must enter and leave our office at 6630 Seville Drive in Canfield via the building’s lower entrance. To access that entrance please turn left just after pulling into our driveway from Seville.

All visitors must wear face masks while in the building.

Visitors will have their temperature taken upon entering.

Visitors whose temperatures are above normal will not be permitted to enter the premises.

Visitors will be asked to cleanse their hands with hand sanitizer before proceeding to their appointment.

Strict social distancing protocols will be observed during all meetings/conferences.

Only people who are meeting with an attorney or staff member will be permitted to enter the premises. No spouses, significant others, children, other family members, or friends will be permitted in the office during your visit. If you are accompanied by a companion(s), we ask that they wait in the car.

If you are not feeling well on the day of your meeting or are exhibiting the following symptoms please call us to cancel and reschedule your appointment:

We are taking these precautions to protect you and our employees as we continue to provide the legal representation you need and deserve.

Finally, we want to remind you that we are able to meet with you remotely via Skype, Facetime, or teleconference.

Be well, stay safe, and remember, we’re all in this together.

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

/in , , , , /by

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.