Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights

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Posts tagged Accident
Drive Safe This Holiday Season

“It’s not you that I worry about,” said my mom when I received my driver’s license, “it’s the other drivers that concern me.”   She is right.  To a great extent, every time we get behind the wheel of a car we are putting our safety (and lives) in the hands of thousands of other people we encounter driving on Ohio’s roadways.  Even the most cautious and careful driver can fall victim to someone else’s carelessness.  

As the holiday season is upon us, many of us will be traveling to spend time with friends and family throughout the country.  According to the Ohio Department of Public Safety, there were 36,392 motor vehicle accidents in the months of November and December last year; the majority of which – 29,678 – was in December.   And for 11,578 people, an accident resulted in some type of injury. 

So, what can we do to protect ourselves this holiday season? Simple, control what you can and, hopefully, others will too:

  1. Don’t drink and drive
  2. Don’t text and drive
  3. Don’t drive if you’re tired
  4. Maintain appropriate speeds and distances in inclement weather
  5. Report unsafe driving
  6. Wear your seat belt

Enjoy your holidays and I wish you safe travel!  

If you have been injured by the negligence of another, contact me for a no cost, no obligation consultation and case evaluation; I will fight for you. 

How to Protect Yourself BEFORE a Bicycle Accident

For cyclists, this week served as yet another painful reminder of the vulnerability that we face every time we roll out onto the roadway and the catastrophic harm that can be caused for ourselves and our families.   While I trust most cyclists are careful, it is the distracted driver, the impatient driver, or the drunk driver that we have to worry about.   Their actions (and reactions) are completely out of our hands.  

I previously posted an article titled “What to do if You’re Involved in a Bicycle Accident” which you should check out first.   What that article does not address is the steps you should take before an accident happens to protect yourself and your family afterwards.   In other words, buy as much insurance as you can reasonably afford.  While this is not a comprehensive discussion on the issue of insurance, or the available types, here are a few types of insurance that you should absolutely have if you’re a cyclist:   

  • Life Insurance:         Kalamazoo, MI.  West Baltimore, MD.  Brooklyn, NY.  Brecksville, OH.   The list can go on.   Purchasing a life insurance policy will provide your family some semblance of financial security in the event tragedy strikes and will compensate, at least for a time, the shortfall of income resulting from your loss.
  • Disability Insurance:             It is not difficult to understand that, even if you are fortunate enough to survive a bicycle accident, your injuries may be catastrophic and leave you disabled.   If you are no longer able to work and earn an income to support your family, disability insurance will help you stay afloat by providing monthly payments during the period as set forth in the policy.   A short-term policy usually is for payments less than one year whereas a long-term policy can vary but may be as long as until you reach a retirement age. 

Life insurance and disability insurance are two types of policies that are wise to have as they provide financial support for injuries that go beyond a bicycle accident (i.e. major health issue or some other type of injury) and, more likely than not, have no relation to fault for the injury.   

For a motorist in Ohio, the law requires that they have at least $25,000/$50,000 in coverage.   This means that the policy limit per individual is $25,000 and the policy limit per occurrence is $50,000.   For example, even if your damages exceed $25,000, the insurance company is only required to pay $25,000 leaving you holding the bag for the rest.   What if a motorist plows into a pack of cyclists?  Splitting up $50,000 among all injured parties would be woefully inadequate to compensate them for their injuries.   Worse yet, what if the motorist has no coverage at all.

One way to protect yourself is to insure that you have uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) on your own auto policy.   DO NOT remove it to save a few dollars on your monthly premium.  Here’s how it works:

  • Uninsured Motorist Coverage (UM):     UM coverage comes into play if the motorist does not have any insurance at all.    Unfortunately, this is all too common.   In this event, you can make a claim against your own insurance policy for your damages.  If you purchased a $100,000 UM/UIM policy, this means you can recover up to $100,000.
  • Underinsured Motorist Coverage (UIM):             UIM coverage comes into play if the motorist does not have enough insurance to compensate you for your injuries.   Let’s assume that a motorist’s policy is $25,000/$50,000.    You have a $100,000 UM/UIM policy.   In this case, you will be able to recover up to the difference between the two policies under your UIM policy (i.e. $25K from driver and $75K from UIM).   If your UIM coverage equals the motorist’s coverage (i.e. both 100K policies) you cannot claim UIM coverage.  A NOTE OF CAUTION:  If the motorist’s carrier tenders the policy limits and you accept without notifying your UIM carrier, you may very well foreclose your claim for UIM coverage.   As such, it is important to read your policy and consult with an attorney before making such decision.   

Finally, if you own a home, consider purchasing an umbrella policy to go along with your home and auto insurance.   Most policies provide a minimum of $1,000,000 in coverage and do not cost more than a replacement tube per month. 

If you have sustained an injury in a bicycle accident, please contact Scott for a no cost, no obligation consultation and case evaluation. 

Are You Opening Up Your Medical History By Filing A Lawsuit?

Some potential clients are concerned that they are opening up their entire medical history by filing a personal injury claim or lawsuit.   Whatever the reason, you should know that  R.C. § 2317.02 establishes several testimonial privileges that can be asserted to prevent someone with a special relationship to a party (i.e. husband or wife, attorney, clergy, etc.) from testifying in court proceedings relative to communications made to them by the party. One privilege that is codified is the physician-patient privilege. This testimonial privilege is certainly relevant in personal injury or medical malpractice cases.

Specially, R.C. § 2317.02(B) provides that physicians "shall not testify" concerning "communication made to the physician... by a patient in that relation or the physician's... advice to a patient..." unless (1) the patient has waived such privilege or (2) the request falls within one of the exceptions.

One such exception where the physician may testify is where the patient, the estate of the patient (if deceased), or the patient's guardian or legal representative files:

(1)                a medical or dental malpractice claim;

(2)                a wrongful death claim;

(3)                a worker's compensation claim; or

(4)                any other type of civil action (i.e personal injury claim).

In other words, a physician may be compelled to testify in claims where the patient's medical condition is most likely at issue. Reading this you may think that by filing a lawsuit which claims some type of personal injury that you are completely opening up your medical history - the insurance companies and defense lawyers believe this - however, that isn't necessarily true. The Revised Code also provides that a physician may be compelled to testify only related to communications or advice that are related “causally or historically to physical or mental injuries that are relevant to issues..." in the lawsuit.

For example, if you're claiming you sustained a left knee injury during a fall and you previously had your left knee operated on, those records are historically related to the injury at issue. However, if you previously saw a cardiologist, those records are not causally related to your knee injury.

With this in mind, it comes a no surprise that Ohio courts have recognized that while a defendant is entitled to discovery of matters causally or historically related to the injuries at issue, a plaintiff filing a personal injury claim does not open himself up to exposure, without limitation, of all his medical records. Moreover, Ohio courts have found that it is improper to require a plaintiff to execute "general medical records release authorizations" that are not tailored to physical or mental injuries relevant to the issues in the case.

So how are disputes resolved? While every court and trial judge is different, the majority view in Ohio is that the medical records in question should be submitted to the Court for an in camera inspection; meaning the Court will independently review the records to determine if they are historically or causally related. If so, the records will be ordered to be produced to defense counsel. If not, the plaintiff's records will remain private.

If you have been injured by the negligence of another, but are concerned for your medical privacy, contact Scott for a no cost, no obligation consultation and case evaluation.