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. 

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

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.

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

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.

Two stories shine spotlight on dangers of preventable medical errors

Chart showing medical errors as the third leading cause of death in the U.S.As lawyers who have represented hundreds of medical malpractice victims, we’re acutely aware of the dangers associated with the hundreds of thousands of preventable medical errors committed by health care professionals in the United States each year. That’s why our interest was piqued by two troubling articles that recently appeared in the Washington Post.

The first:  A dog bite sent him to the ER. A cascade of missteps nearly killed him, tells the story of 50-year-old David Krall who nearly died after doctors and ER personnel failed to realize that a life-threatening infection caused by a dog bite was spreading throughout his body. The cavalcade of errors that nearly killed the previously healthy industrial engineer from Lexington, Kentucky included unconscionably long waits for treatment in the ER, doctors’ refusal to recognize that the dog bite was the source of the infection, and misdiagnosis of the infection itself.

As a result of the mistakes, Mr. Krall spent 51 days in the hospital, lost portions of several toes, and is now deaf in one ear.

One reason he almost lost his life: doctors refused to listen when his wife and family friend who is a physiologist insisted that the dog bite was the source of the infection that was rampaging through Mr. Krall’s body. Here’s how the Post  described the situation:

After David was moved to the intensive care unit, Becky said, she repeatedly mentioned the dog bite as a possible cause of his infection. But she said doctors told her they didn’t think the bite was relevant. They were fairly certain that David’s meningitis infection was caused by a bacteria known as Neisseria meningitidis . How he had acquired it was a mystery.

Becky grew increasingly insistent after a physiologist friend found articles in medical journals about a rare bacterium transmitted in dog saliva, Capnocytophaga canimorsus , which causes potentially fatal infections, particularly in people without spleens.

Forster, who was called in on the sixth of David’s 51-day hospitalization, recalled that the ICU team “mentioned the dog bite as an aside. They said the wound didn’t look bad, and they weren’t focused on it.”

Things weren’t helped when ER doctors at the University of Kentucky’s Albert B. Chandler Hospital failed to treat him even though his blood pressure was extremely low and his temperature had climbed to 102.9. Krall and his wife Becky decided to go home at 12:30 A.M. after waiting more than five hours for the hospital’s staff to address his symptoms. When they came back the next morning Krall was near death.

You may read the entire, harrowing story here. 

Our second tale of medical woe involves one of the scariest of all medical nightmares: a surgical mistake that results in the removal of a perfectly healthy body part. In our second story: He underwent surgery to remove his right testicle. When he woke up, his left one was missing., reporter Amy Wang recounts the trials and tribulations of Steven Haines, who visited his urologist complaining of persistent pain in his right testicle. Here’s Ms. Wang’s description of events:

An ultrasound revealed that the testicle had atrophied, with scarring and damage from a previous injury, according to court documents. And so the doctor scheduled an orchiectomy — or surgical removal of the testicle — to help alleviate Hanes’s pain.

The good news? The orchiectomy was successful.

The bad news? The doctor removed the wrong testicle during the surgery.“At this point it appeared that the left testicle and cord may actually have been removed instead of the right one,” the surgeon, Valley Spencer Long, wrote in a postoperative report, according to court records.

No, I’m not kidding and no, it’s not at all funny. To the contrary, what happened to Mr. Hanes is tragic, inexplicable and inexcusable. And while rare, such mistakes do happen. A 2011 Post roundup of such cases included doctors in Minneapolis removing a healthy kidney from a man with kidney cancer and an ophthalmologist in Portland, Ore., operating on the wrong eye of a 4-year-old boy.

“Few medical errors are as vivid and terrifying as those that involve patients who have undergone surgery on the wrong body part, undergone the incorrect procedure, or had a procedure intended for another patient,” the U.S. Department of Health and Human Services says. In the medical community, “wrong-site, wrong-procedure, wrong-patient errors” are known as WSPEs, and they are so egregious and usually preventable that the federal health department deems them “never events” — “errors that should never occur and indicate serious underlying safety problems.”

Today, Mr. Hanes, who was severely traumatized by the incident, is living with the pain in his right testicle for two reasons: first because he is understandably fearful of undergoing another surgery, and, second, because if the remaining testicle is removed he will be forced to undergo testosterone replacement therapy for the rest of his life.

You may read Mr. Hanes’ story here.

Finally, if you are hurt or a member of your family is injured or killed because a medical professional made a mistake, please contact the experienced legal team at Betras, Kopp & Harshman and set up a no-cost consultation as soon as you can. We will use our experience to examine your case, provide our best advice, and do all we can to help you secure justice and the financial settlement you and your loved ones need and deserve.