Loss of consortium claims for same-sex couples: Equal protection under the law?

In some states, married same-sex couples cannot receive benefits from personal injury claims that are afforded to married opposite-sex couples.

On April 28, 2015, the U.S. Supreme Court heard oral arguments in the matter of Obergefell v. Hodges, one of four state cases[1] related to same-sex marriage scheduled before the nation’s high court this session. The petitioners in Obergefell asked the justices to decide whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Why does it matter?

You may wonder what same-sex marriage has to do with a personal injury claim. Under Ohio law, marriage provides couples with a myriad of legal rights such as favorable tax treatment, presumed parentage, and the right not to testify against a spouse in criminal proceedings. Also included among rights afforded to married couples is the right to make a legal claim in certain cases, specifically, where a spouse has been injured or killed.

In 2004, the people of the State of Ohio adopted Ohio Issue 1, an amendment to the Ohio Constitution, which provided that Ohio would refuse to recognize the validity of same-sex marriages even if they were valid in the state where the marriage was performed.

Loss of Consortium and Wrongful Death Claims

In a personal injury claim, damages for loss of consortium cover the losses one spouse experiences when the other is injured as a result of the defendant’s negligence or other wrongful acts. Loss of consortium damages may include damages for loss of services, damages for loss of support, and damages for loss of quality in the “marital relationship,” which includes things like providing affection and emotional support.

If the injured spouse dies from his or her injuries, the surviving spouse may also file a claim for wrongful death and seek monetary compensation for loss of support that roughly equals what the injured person would likely have made, had he or she not died prematurely.

Can I file a same-sex Loss of Consortium claim in Ohio?

Each state has its own limitations on the availability of loss of consortium and wrongful death claims. In most jurisdictions, for example, in order to bring a claim for loss of consortium, you will need to show that a valid marriage exists. Under current Ohio laws, same-sex couples are unable to benefit from a loss of consortium claim or wrongful death action.

While no one knows how the Supreme Court will rule, many same-sex couples are hopeful the state cases will follow the Court’s decision in United States v. Windsor[2], which ordered the federal government to recognize the validity of same-sex marriages entered into in the states that allow them.

The audio recording and written transcripts of the oral arguments for Obergefell v. Hodges and consolidated cases can be accessed directly through links on the homepage of the Court’s Website: www.supremecourt.gov.”

Same-sex marriage laws by state

Click a state for details. (Data current as of April. 2, 2015.)

Same-sex marriage legalized
Civil unions or domestic partnerships
Constitutional or statutory provisions prohibiting same-sex marriage

Resources:

[1] The Court will rule on four cases, focusing its review on two key issues: (1) the power of the states to ban same-sex marriages and (2) to refuse to recognize such marriages performed in another state. The Kentucky case (Bourke v. Beshear) raises both of the issues that the Court will be deciding, the Michigan case (DeBoer v. Snyder) deals only with marriage, and the Ohio (Obergefell v. Hodges) and Tennessee cases (Tanco v. Haslam) deal only with the recognition question.

[2] United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12, 186 L. Ed. 2d 808 (2013)

Medical Apps for Injury Victims

Forgetting or choosing not to take your medicine is never a good idea, but for injured clients, it’s imperative to follow their medical provider’s care plan. In both personal injury and medical malpractice claims, the validity of an injury may come into doubt if you don’t follow up with your doctor and adhere to all prescribed treatments. During a trial, jurors will question the motives of someone who stopped medical treatment and may assume they do not deserve full compensation for their injuries.

Medication Reminders

Medical apps can help you track your recovery after an injury.Anyone who has multiple prescriptions knows it can be difficult to remember to take medications. The following apps can help make medication compliance easier.

MediSafe helps you manage and take your medication on time and lets you know when it’s time for refills, provides doctor appointment reminders, and provides a place to store doctor phone numbers and addresses. Users also have the option to allow their family, friends and caregivers to help with compliance by being alerted as to whether or not you medication was taken.

MedCoach makes it easy for users to follow their medication and vitamin schedule as prescribed by a doctor. It delivers friendly reminder messages to your phone. The app can even connect you to your pharmacy for prescription refills.

Track Medical Records

Medical expenses are by far the most important component of any personal injury case. Whether your case is settled out of court or decided by a jury, you must have complete medical records to back up your claim.

My Medical™ for iOS is a comprehensive record-keeping app for your personal medical information. My Medical can keep track of medications, surgeries, hospitalizations, tests, physicians, allergies, immunizations, assistive devices and much more. It meets the industry standard Continuity of Care Record format, which makes it easy to transfer records from one system to another. For extra security, data is stored directly to your device and not on a remote server.

Healthspek for iPad allows you to easily track, collect and safely share your personal and family health records, manage medications and store legal documents. Account holders can manage medications, medical charts and images, track vitals, access care, and record physician, insurance and emergency contacts, among other features. With the patient’s permission, doctors can access records through Healthspek’s www.chartnow.com–providing convenience for both you and your physician.

Be cautious of apps that make bold claims

Medical apps abound for consumers looking to use their mobile devices to improve their health and users can easily find apps that promise to promote mental health, aid sleep, cause weight loss, control food allergies, aid self-diagnosis, manage pain, and help in every other conceivable medical condition. However, the FDA regulates consumer health apps at its own discretion, depending on the possible risks to users.

“If an app claims to treat, diagnose or prevent a disease or a health condition, it needs to have serious evidence to back up those claims,” said Mary K. Engle, associate director of the F.T.C.’s division of advertising practices. “We hope marketers will take heed of that and do their homework before they get into the marketplace.”

 


 Elk & Elk Co., Ltd. does not endorse or recommend any commercial products, processes, or services. This information is not intended to treat, diagnose, cure or prevent any disease. All material provided on this Site is provided for information purposes only. Always seek the advice of your physician or other qualified health care provider.

Airbags Exploding Like IEDs – Car Occupants Hit with Shrapnel

In an urgent message to consumers, the National Highway Traffic Safety Administration (NHTSA) has recalled millions of vehicles due to defective airbags, which can spontaneously explode and seriously harm passengers.

According to government officials, owners of affected Toyota, Honda, Mazda, BMW, Nissan, Ford, Chrysler, Mitsubishi, Subaru and General Motors vehicles should take “immediate action” to replace defective airbags, produced by Japanese manufacturer, Takata. The message is especially urgent for drivers in warm climates with high humidity.

In an interview with ABC News, auto safety expert Sean Kane said the problem with the Takata airbags is its internal inflator.

“[It’s] the canister which sits in the center of the airbag, it’s like a metal can,” Kane said. “When that’s ignited, it’s overpressurizing the canister and the canister is exploding, much like an IED [improvised explosive device], and sending shrapnel into the occupants of the vehicle.”

Kane also said that the explosions have resulted in “severe lacerations” and caused at least four deaths.

On its website, the NHTSA lists more than 7.8 million vehicles with model years from 2000 to 2006 – as well as the 2011 Honda Element — that have been subject to related recalls over the past two years and strongly urges owners to take them to their dealers immediately.

Failure to Warn

In an article dated September 11, 2014, The New York Times revealed that Honda and the airbag supplier have known about this life-threatening flaw for at least a decade:

The danger of exploding air bags was not disclosed for years after the first reported incident in 2004, despite red flags — including three additional ruptures reported to Honda in 2007, according to interviews, regulatory filings and court records.

In each of the incidents, Honda settled confidential financial claims with people injured by the air bags, but the automaker did not issue a safety recall until late 2008, and then for only a small fraction — about 4,200 — of its vehicles eventually found to be equipped with the potentially explosive air bags.

Consumers who are uncertain whether their vehicle is impacted by the Takata recalls, or any other recall, can check on www.safercar.gov/vinlookup. On the site, you can search for recalls by vehicle identification number (VIN) and sign-up for NHTSA recall alerts, which go out before recall letters are mailed by the manufacturers to the affected owners.

Sources:

Halsey, Ashley, III. “Airbag Defect Spurs Recall of 4.7 Million Vehicles.” Washington Post, October 20, 2014. Web. Accessed October 21, 2014.

Tabuchi, Hiroko. “Air Bag Flaw, Long Known to Honda and Takata, Led to Recalls.” The New York Times, September 11, 2014. Web. Accessed October 21, 2014.

Insurance Claims: Settling Too Early Can Be a Huge Mistake

Ohio personal injury attorney Bill Price explains why accepting an insurance provider’s settlement offer may not be the right decision.

One of the most common challenges you’ll face after an injury is the need for money. We already need it every day, but when you’re injured and can’t work, you need money more than ever to provide for your family.

To make matters worse, insurance companies know your situation. They know whether you’re living paycheck to paycheck or if you’ve been out of work for 6 months due to an injury – and they use this to their advantage.

Insurance companies deal with claims every single day. Claims just like yours. Claims that involve personal injury accidents like automobile crashes, tractor-trailer wrecks and even slip and falls. You don’t deal with an injury every day. In fact, the average person only brings one lawsuit against a company in their life regarding personal injury – if at all.

Insurance adjusters take that knowledge and use it against desperate, inexperienced injury victims. You don’t know whether your injury is worth $50,000 dollars or millions. What you do know is that with a family member out of work, bills can pile up quickly. Not only are there lost wages, but also medical bills, including hospital stays, prescription drugs and even physical therapy. For a struggling family, $50,000 can seem like a lot of money.

While an early settlement can help get you back on track and help pay off some bills, don’t accept an offer before seeking legal advice. An experienced personal injury attorney can look into the matter for you and help determine if more insurance money is available. Remember, a quick settlement may help right now, but what about future medical costs? If you’ve been seriously injured, it may take a very long time before you’re able to return to work – if ever. All future costs should be carefully examined in order to provide you and your family with the compensation you deserve.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

William J. Price

Boating Safety

The attorneys at Elk & Elk wish all of you an enjoyable boating season and encourage everyone to stay safe on and near the water. Boaters need to be especially careful, use common sense and take the steps necessary to avoid tragedy on the water. Follow these basic safety tips as you enjoy Ohio’s lakes and rivers with family and friends.

Don’t Drink and Boat

Never use drugs or alcohol before or during boat operation. Exposure to sun, glare, wind and even vibrations can all increase the effects of alcohol.

boating
Photo Courtesy of The U.S. Coast Guard

Keep and Maintain Safety Equipment Onboard

  • Life Jackets – Have a U.S. Coast Guard-approved life jacket for each person onboard and one approved throwable device for any boat 16 feet and longer. The Ohio Department of Natural Resources recommends that everyone wear a lifejacket while on the water.
  • Fire Extinguisher – Except for a few exceptions¹, all watercraft in Ohio must be equipped with a fire extinguisher. Fire extinguishers must meet or exceed United States Coast Guard standards, be capable of extinguishing a gasoline fire, be readily accessible and be in condition to be ready for immediate and effective use.
  • Lights – Always test boat lights before the boat leaves the dock and carry flashlights with extra batteries.
  • Emergency supplies – Keep a cell phone, maps, flares and a first aid kit on board in a floating pouch.

Watch the Weather

Always keep a close eye on the weather and bring a radio. Signs that a storm is brewing include wind changes, lightning flashes and choppy water. When in doubt, head for shore.

Take Special Cold Water Precautions

It may be hot outside, but at the time of this writing, Lake Erie temperatures near Cleveland were only around 50° F. The water temperatures are much cooler this year due to an unusually late ice cover. So how cold is too cold? According to the U.S. Coast Guard, water temperatures less than 70° F can lower your body temperature, causing hypothermia.

Pre-boating Guidelines

  • Beware of fumes – If not ventilated properly, gasoline vapors can be deadly. Open all hatches and run the blower after you refuel and before getting underway. Sniff for fumes before starting the engine.
  • Don’t overload your boat – If your boat is filled with too much gear or too many passengers, it will become unstable and increase the risk of capsizing or swamping.

Follow Navigation Rules

  • The nautical rules of the road dictate the operator’s course of action for avoiding collisions. These rules are the traffic laws of the waterways and legally binding for boat operators.
  • Never allow passengers to ride on gunwales or seatbacks or outside of protective railings, including the front of a pontoon boat. A large wave, sudden turn, stop or start could cause a fall overboard.
  • After leaving the boat launch, maintain slow-no-wake speed for a safe and legal distance from the launch.

Get Educated

If you were born after 1981 and you operate a boat greater than 10 horsepower, Ohio law requires you to have boater education.

For more information, or to find a boating class near you, visit the Ohio Department of Natural Resources Division of Watercraft online at http://watercraft.ohiodnr.gov/.

 


 

¹Except for vessels with an electric motor and vessels less than 26 feet of “open construction” with an outboard motor. (See Ohio Revised Code 1547.27.)

Dog Bite Prevention Week – 2014

By now you’ve probably seen the viral video of “Tara,” a family cat saving a young boy from a dog attack.  Unfortunately, dogs bite more than 4 million Americans annually, half of which are children. While not all bites are severe, one in five dog bites results in injuries serious enough to require medical attention.

National Dog Bite Prevention Week® (May 18-24, 2014), is an annual event designed to provide consumers with information on how to be responsible pet owners while increasing awareness of a serious public health issue.

To reduce the chances of your dog biting someone, the Insurance Information Institute recommends taking the following steps:

  • Consult with a professional (e.g., veterinarian, animal behaviorist, or responsible breeder) to learn about suitable breeds of dogs for your household and neighborhood.
  • Spend time with a dog before buying or adopting it. Use caution when bringing a dog into a home with an infant or toddler. A dog with a history of aggression is inappropriate in a household with children.
  • Be sensitive to cues that a child is fearful of or apprehensive about a dog and, if so, delay acquiring a dog. Never leave infants or young children alone with any dog.
  • Socialize your dog so it knows how to act with other people and animals.
  • Discourage children from disturbing a dog that is eating or sleeping.
  • Play non-aggressive games with your dog, such as “go fetch.” Playing aggressive games like tug-of-war” can encourage inappropriate behavior.
  • Avoid exposing your dog to new situations in which you are unsure of its response.
  • Never approach a strange dog and always avoid eye contact with a dog that appears threatening.
  • Immediately seek professional advice from veterinarians, animal behaviorists, or responsible breeders if your dog develops aggressive or undesirable behaviors.

Liability

The Ohio Revised Code (955.28) imposes strict liability in dog bite cases. That means anyone who owns, harbors or keeps a dog is liable whenever his dog bites, injures or causes a loss to a person or to the property of a person—even if the dog has never bitten anyone one before—unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. (Beckett v. Warren, 124 Ohio St. 3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 10.)

What to do after a dog bite

If you are bitten or attacked by a dog, try not to panic.

  • Immediately wash the wound thoroughly with soap and warm water.
  • Call 911 or contact your physician for additional care and advice.
  • Report the bite to your local animal care and control agency. Tell the animal control official everything you know about the dog, including his owner’s name and the address where he lives. If the dog is a stray, tell the animal control official what the dog looks like, where you saw him, whether you’ve seen him before, and in which direction he went.
  • Contact an experienced dog bite attorney to investigate your case and protect your legal rights.

 

For more information, visit http://www.cdc.gov/homeandrecreationalsafety/dog-bites/index.html

Should I Stop Going to My Doctor?

Ohio attorney David Elk explains the importance of seeing your doctor and completing all medical treatment after an injury.

 

If you’ve already filed a lawsuit after an injury, you may be wondering if you should continue to go to your doctor. Frustrated by slow recovery, you may be thinking your treatment isn’t going to make you feel any better and shouldn’t you just stop going?

The answer is a definite no. Personal injury accident cases – whether you were injured a motor vehicle accident, tractor trailer accident or a slip and fall – are all medically driven.

What this means is that you must be able to prove to a jury the severity of the injury or harm done to you. Even if the doctors are at a point where your health will no longer improve – your condition cannot get any better – you should still continue to see a doctor as recommended.

Regular visits with a  physician helps track your progress and provides crucial evidence in a personal injury lawsuit. Your medical records will be used to help calculate damages, such as medical bills, pain and suffering, and lost wages. As long as you’re still in pain, it’s vital to keep going to your doctor. Failure to see your treating physician may cause your  insurance company to assume you’ve fully recovered and could significantly devalue your case.

With your family, health and finances on the line, you’re going to want the best possible outcome in your lawsuit. Personal injury accidents can cost thousands, even hundreds of thousands of dollars in hospital stays, prescription drug costs, lost wages and other medical expenses. You should never do anything that would jeopardize the value of your case so that you and your family can recover from the harm you have suffered.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Jury Awards $39M in Wrongful Death Case

Elk & Elk personal injury attorney Phillip Kuri obtains justice for client

CLEVELAND, April 4, 2014 /PRNewswire/

Phillip Kuri
Phillip A. Kuri, Partner at Elk & Elk Co., Ltd., obtained a $39 million dollar jury verdict for his client.

The Ohio personal injury law firm of Elk & Elk Co., Ltd. is pleased to announce a $39 million verdict on behalf of a deceased Ohio construction worker who lost his life in a fatal motor vehicle accident in 2010 on Interstate 271, near Richfield, Ohio.

A unanimous jury in Cuyahoga County, Ohio returned the $39 million verdict against The Shelly Company on April 3, 2014 in the case of Lynette A. Roginski v. Shelly Co., et al. The jury ruled that the Thornville, Ohio paving company was negligent and caused the fatal accident, according to official court documents. (Case no. CV-11-760490).

“When corporations put profits ahead of safety, as was the case in Mr. Roginski’s tragic death, families suffer the very real consequences,” said Phillip A. Kuri, a prominent Cleveland attorney and one of two lawyers who represented the plaintiff. “It is our wish that this verdict will put companies on notice and help prevent similar accidents in the future.”

The fatal accident on July 27, 2010 resulted in the death of Randy Roginski, a husband, son, and father of three. Mr. Roginski, a 41-year-old resident of North Royalton was in an active construction zone working for Solar Testing Labs Inc. at the time of the accident, which occurred at 11:58 p.m. just north of Interstate 77, according to the Ohio State Highway Patrol. He was standing on the berm on the right side of the highway when he was struck by a passing motorist. Roginski was pronounced dead at the scene.

The case was brought in 2011 by Mr. Roginski’s widow, represented by Phillip A. Kuri of Elk & Elk Co., Ltd. and Christian R. Patno of McCarthy, Lebit, Crystal & Lifftman Co., LPA. The plaintiff’s attorneys presented evidence that the paving company cut corners and failed to follow the approved safety plan. The jury determined The Shelly Company was negligent and awarded Mr. Roginski’s widow $19 million in compensatory damages, according to court documents. The Shelley Company was also found liable for $20 million in punitive damages and ordered to pay the plaintiff’s attorney fees.

“Sadly, many workplace injuries and deaths such as Mr. Roginski’s are preventable,” said Kuri. “We hope this sizeable verdict will serve as a reminder to corporate America that if someone dies due to a company’s negligent actions, that business will be held accountable.”

About Phillip A. Kuri

Attorney Phillip A. Kuri, a partner at Elk & Elk Co., Ltd., practices in the areas of personal injury, medical malpractice and general tort law, among others. Attorney Kuri has been selected as an Ohio “Super Lawyer,” recognized by the Million Dollar and Multi-Million Dollar Advocates Forums and is a member of the American Association for Justice Top 100 Trial Lawyers.

About Elk & Elk

The Elk & Elk® personal injury law firm represents clients in cases throughout Ohio. The firm has 18 trial attorneys with experience in motor vehicle collisions, medical malpractice, nursing home neglect, defective products, work place accidents, and premises liability. Elk & Elk Co., Ltd. has offices located at 6105 Parkland Boulevard, Suite 200, Mayfield Heights, Ohio 44124 and locations throughout Ohio, including Cleveland, Columbus, Cincinnati, Akron, Canton, Dayton, Toledo, and Youngstown. For more information, visit www.elkandelk.com.

Contact:

Ken Perdue, Marketing Director
Elk & Elk Co., Ltd.
kperdue@elkandelk.com
(440) 442-6677

How Do I Pay For My Personal Injury Case?

Ohio attorney Art Elk explains what a contingency fee is and how it affects you in your personal injury accident or medical malpractice case.

After an accident, it’s easy to become overwhelmed by all the decisions you are required to make. You may need to seek medical help, talk to insurance companies, get your car repaired and deal with not being able to work.

One of the last things on your mind may be bringing a lawsuit against the other driver to help compensate you for lost wages, medical bills and other costs from the accident.

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Most people think of attorneys as charging very high hourly rates—like the ones shown on television and in movies. However, personal injury attorneys work in an entirely different way. Accident lawyers work on a contingency fee basis. In this type of fee structure, you owe the attorney nothing unless a favorable outcome is reached.

The attorney will pay the upfront costs of your case, including investigation fees, getting your medical records and even hiring experts to testify in your case. They must put
together visual aids for court, set up depositions and cover court costs. As an injured victim, you pay no money upfront in your case.

This helps victims who would not ordinarily be able to afford such services, especially after an accident that may have left them in the hospital and out of work. Once you have won your claim, your attorney gets his costs and fees out the money you’re awarded. This allows you to bring a claim when you’ve been hurt but at no cost to you. If your attorney doesn’t win your case, you don’t have to pay a single dime. Since the attorney only receives compensation if there is an award, it gives your lawyer the incentive to make sure your lawsuit is successful.together visual aids for court, set up depositions and cover court costs. As an injured victim, you pay no money upfront in your case.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Art Elk

 En Español

 

How to Lose Your Personal Injury Lawsuit

Ohio attorney Mindy Elk-Fisher talks about how important it is to keep seeing your doctors even after starting your personal injury lawsuit.

Your personal injury lawsuit is centered on the harm suffered in your accident case. Within this medically driven case, documentation is vitally important.

Do not delay seeking medical care. Although you may feel okay at first, many injuries take time to develop. Even if you start to feel better, continue to meet with your doctors and therapists until the completing your medical treatment.

It’s never a good move to stop seeing your doctors in a personal injury case. As we prepare for trial or try to get a settlement based on your injuries, the validity of your injury may come into doubt if you don’t follow up with your doctor and adhere to all prescribed treatments. Jurors will question the motives of someone who stopped medical treatment and may assume they do not deserve full compensation for their injuries.

In order to justify the amounts demanded in your personal injury case, we must show how much your injuries have affected your life and family. We need to show what injuries you suffered, the costs you have incurred, how much pain you suffered and how long it’s going to take you to recover from the accident. Only when armed medical records proving such information are we able to move forward with your claim and seek the best possible result.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Mindy Elk-Fisher