Firm News
Mishkind Law Firm Co., L.P.A., News
Press Releases
- Medical Malpractice Attorney Howard Mishkind Serves as Luncheon Chair
- Medical Malpractice Attorney Howard Mishkind to Help Teach Trial Tactics Course
- Press Release - Multi-Million Dollar Advocates Forum
- Million Dollar Advocates Forum
- Multi-Million Dollar Advocates Forum
- 2009 Public Justice Foundation
Howard Mishkind and David Kulwicki Named to Super Lawyers List 2012
Howard Mishkind was again chosen for inclusion in Ohio Super Lawyers for the year 2012. He has been named to the Super Lawyers list every year since 2006. David Kulwicki has been named to Super Lawyers in 2012 as well.
Only 5 percent of lawyers in the state are named. This is not a popularity contest and is based upon considerable polling and peer evaluation efforts with detailed research that evaluates each candidate based on 12 indications of peer recognition and professional achievement. The process to be named to the Super Lawyers list involves checks and balances that produce a well-rounded and diverse listing of attorneys. There are a series of safeguards built into the database to prevent lawyers from campaigning their way onto the list or engaging in any sort of cooperative voting.
The objective of Super Lawyers is to create a list that is useful to consumers of legal services and is a credible rating system to be used in choosing legal counsel. Inclusion on this list is not a guarantee of quality, but is one piece of information that consumers can consider when searching for a lawyer.
Howard Mishkind Named to Super Lawyers List 2006-2011
Howard Mishkind was again chosen for inclusion in Ohio Super Lawyers for the year 2011. He has been named to the Super Lawyers list every year since 2006. Only 5 percent of lawyers in the state are named. This is not a popularity contest and is based upon considerable polling and peer evaluation efforts with detailed research that evaluates each candidate based on 12 indications of peer recognition and professional achievement. The process to be named to the Super Lawyers list involves checks and balances that produce a well-rounded and diverse listing of attorneys. There are a series of safeguards built into the database to prevent lawyers from campaigning their way onto the list or engaging in any sort of cooperative voting. The objective of Super Lawyers is to create a list that is useful to consumers of legal services and is a credible rating system to be used in choosing legal counsel. Inclusion on this list is not a guarantee of quality, but is one piece of information that consumers can consider when searching for a lawyer.
Cleveland-Marshall College of Law Bar Result Passage Rate
Howard Mishkind is a proud graduate of Cleveland-Marshall College of Law, Class of 1980. He has always been proud of our local law school and the great leaders that have been educated at our institution. The recent bar result passage rate is evidence of the excellence of the education that is achieved at Cleveland-Marshall and he is proud to say that it is his alma mater.
Howard Mishkind Admitted to Practice Before the United States Supreme Court
On January 16, 2008, Howard Mishkind, was admitted to the Bar of the Supreme Court of the United States. As a member of the Bar, he is eligible to argue before the United States Supreme Court. His admission to the United States Supreme Court came as part of an admission process which involved an invitation by the Dean of Cleveland-Marshall College of Law. Mr. Mishkind was part of a group of 12 graduates of Cleveland-Marshall College of Law that were sponsored by the Dean of the law school. Mr. Mishkind submitted an application which was reviewed by the Court and his credentials to be admitted before the highest court in the United States, were deemed appropriate.
Moffitt vs. Auberle 167 Ohio App. 3d 120 a doctor may be liable for negligent misrepresentation.
Moffitt vs. Auberle 167 Ohio App. 3d 120 a doctor may be liable for negligent misrepresentation. The claim for negligent misrepresentation will exist where a doctor's office fails to provide documentation to the patient's employer and the patient relied on the representation that the physician would provide documentation to a patient's employer. The physician's office failed to provide documentation about the patient being unable to return to work and the patient was fired by her employer for failing to return.
The court held that liability against a doctor for negligent misrepresentation does exist in Ohio for failing to exercise reasonable care or competence in supplying correct information where there was a duty to provide information and a reliance by the patient on such representation.
Therefore, a physician or hospital may be liable to a patient for negligence that doesn't necessarily involve medical treatment, but does involve negligent communication of information about the patient's medical condition that results in injury to the patient (in this case economic injury).
Medical Malpractice Premiums
A recent article indicates that the American Medical Association conducted a survey of self-employed doctors that indicates that insurance premiums were lower in 2000 than in 1986, contradicting the widespread belief that premiums have risen steadily. This article is from Malpractice Premiums & Physicians Income: Perceptions of a Crisis Conflict with Empirical Evidence, 25 Health Aff. 750 (2006).
Neurosurgeon has suspension dismissed
Many of you may be familiar with Dr. Lustgarten, a neurosurgeon that had his privileges suspended by the North Carolina Medical Board for testifying in a medical negligence case. Dr. Lustgarten was successful in dismissing the suspension based on the fact that he had a good faith evidentiary basis for his testimony when he testified that a notation in the medical records was faulty. Therefore, he was accused of giving false or unethical testimony.
New Law Makes Medical Negligence Claims More Expensive and Difficult to Pursue.
Effective July 1, 2005 Civil Rule 10(D) of the Ohio Rules of Civil Procedure has been amended to include the following relevant language:
Ohio Civil Rule 10(D) Attachments to pleadings.
(2) Affidavit of merit; medical liability claim.
(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical claim, dental claim, optometric claim, or chiropractic claim, as defined in section 2305.113 of the Revised Code, shall include an affidavit of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish evidence. The affidavit of merit shall include all of the following:
(i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable standard of care;
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit.
(c) An affidavit of merit is required solely to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of impeachment.
This requirement is not new in Ohio and has been the subject of litigation in the past. Similar requirements have been attacked on a constitutional basis as being in violation of the Ohio and Federal Constitutions as violative of the equal protection of the law provision of our Constitution. The requirement of an affidavit as discussed above is not required in any other type of injury claim. Thus, an individual injured due to the negligence of a defective product, a negligent driver or an unsafe condition caused by a defendant that is not a medical care provider, can file a complaint under Civil Rule 10 without meeting the above requirements.
There is little, if any, actual evidence to support the suggestion by certain interested groups that this amendment is necessary to combat the alleged malpractice crisis that has been the focus of much debate throughout Ohio and nationally. With recent changes in the law in Ohio in terms of so-called "tort reform," the necessity of such additional requirements in medical negligence claims is questionable, at best. Further, it is our position that it will result in added expense to an injured patient in terms of being able to pursue litigation against a doctor, hospital or nursing home in Ohio. The requirement of an affidavit signed by a medical expert at the time of the filing of the lawsuit will likely have a chilling impact on the ability of patients to obtain justice in Ohio when injury or death is caused by medical negligence. Experts are going to be unwilling to sign affidavits of merit as required by this new rule without adequate discovery of additional facts that can only be obtained during formal discovery after the filing of a lawsuit.
We and other attorneys that handle considerable medical claims will continue to monitor this new requirement in the law and will do what is necessary to protect the interest of you, our clients, in seeking a fair outcome in the event that a preventable and foreseeable act of medical negligence harms you or a loved one.
Howard Mishkind, Esq.
Civil Rule 10 affidavit requirement has been amended as of July 1, 2007 in the following respects:
- A motion to extend the period of time to file an affidavit of merit (that is properly filed with the complaint) shall be granted for good cause for a period of 90 days. The 90-day period may be extended by the court if the defendant or a non-party has failed to cooperate with discovery sufficient to provide the affidavit of merit.
- Good cause to extend the period is now defined by the following:
- A statement of the information necessary in order to obtain an affidavit of merit.
- Whether the information is in possession of the defendant or a third party and what efforts were taken to obtain the information prior to filing suit.
- The type of discovery that would be necessary to obtain the information (i.e., deposition, subpoena, request for production).
There is a catchall provision that the court can consider good cause under the any other facts or circumstances relevant to the ability of the plaintiff to obtain an affidavit of merit (i.e., insufficient time to provide the information to an expert to obtain the affidavit).
The amendment to Civ. R. 10(D) also indicates that a dismissal of the complaint for failure to attach an affidavit operates as a failure otherwise than on the merits. Thus, if a complaint is dismissed without an affidavit, the case can be refiled within one year of its dismissal.
The additional change to the rule is that an affidavit filed with the complaint that is determined by the court to be defective pursuant to Civ. R. 10(D)(2)(a) which requires that the affidavit be signed by an expert qualified under Evid. R. 601(D) that he has reviewed the medical records and is familiar with the standard of care and that his opinion is that the standard of care was breached by one or more of the defendants and the breach caused injury to the plaintiff.
If the court determines that any one of these aspects of the affidavit is deficient, the court shall grant plaintiff a reasonable period of time not to exceed 60 days to file an affidavit curing the defect. If that affidavit is not filed, then the case shall be subject to dismissal and again the dismissal is otherwise than on the merits.
While the constitutionality of the affidavit requirement still is questionable and subject to challenge, this amendment to the affidavit requirement provides a little bit more clarity as to the circumstances where a motion to extend the time should be granted and the reasons for same, as well as the implications of a complaint being filed that does not have an affidavit or is deficient with regard to its affidavit.
As Of December 22, 2004, The Law In Ohio As To How Much Healthcare Providers May Charge For Copies Of Medical Records Has Changed
12/22/2004
As of December 22, 2004, the law in Ohio as to how much healthcare providers may charge for copies of medical records has changed:
- The new law extends to December 31, 2008 the existing law governing fees for copies of medical records.
- The new law changes the fees that healthcare providers and medical records companies may charge for copies of medical records. The fees differ, depending upon who requests the copies.
- The new law requires the Ohio Director of Health to adjust fees in accordance with the Consumer Price Index not later than January 31, 2006, and requires that the Department of Health make a list of the adjusted fees available on its website.
The previous law in Ohio established a charge that was the same regardless of who requested the copies. The previous cost was:
A search fee of $15.00; plus
- Per page copy charges for paper records:
- Pages 1 through 10: $1.00 per page.
- Pages 11 through 50: $.50 per page.
- Pages 51 and higher: $.20 per page.
Plus
- Per page copy charges for records not maintained on paper: the actual cost of making the copy.
Plus
- The actual cost of any related postage.
The New Law creates a distinction between a patient's "personal representative" and a patient's "authorized person."
- A patient's "personal representative" means a minor patient's parent or other person acting in loco parentis, a court-appointed guardian, a person with durable power of attorney for health care for a patient, the executor or administrator of the patient's estate, or the person responsible for the patient's estate if it is not probated.
- A patient's "authorized person" means a person to whom a patient has given written authorization to act on the patient's behalf regarding the patient's medical record.
The new schedule is:
If copies are requested by the patient or the patient's "personal representative"
Search Fee: None
Paper Records:
First ten pages: $2.50 per page
Pages 11 through 50: $.51 per page
Pages 51 and higher: $.20 per page
Data Not Recorded on Paper: $1.70 per page
The actual cost of any related postage: Yes
Anyone other than the patient or the patient's "personal representative" - i.e., the patient's "authorized person" or the patient's insurance company:
Search Fee: $15.35
Paper Records:
First ten pages: $1.02 per page
Pages 11 through 50: $.51 per page
Pages 51 and higher: $.20 per page
Data Not Recorded on Paper: $1.70 per page
The actual cost of any related postage: Yes
The new law also makes it clear that, unless agreed to in writing, the new fee schedule applies to copies that an insurance company requests from a healthcare provider.
The new law retains the existing requirement that one free copy must be provided to the Ohio Bureau of Worker's Compensation, the Ohio Industrial Commission, and the Ohio Attorney General.
The old law required that a healthcare provider had to provide the patient or the patient's representative one free copy if the copy is necessary to support a claim for Social Security benefits and if a copy of the claim accompanied the request for the copy of the medical records.
New law continues this practice - but only if the patient requests the copy or if the patient's "personal representative" requests the copy. A patient's "authorized person" is not entitled to a free copy to support a claim for Social Security benefits.
Can Healthcare Providers Negotiate Different Fees for Copies?
The new law makes it clear that healthcare providers can enter into contracts with patients, "personal representatives," "authorized persons," and insurance companies to make copies for fees that differ from those in the fee schedule. If an insurance company does not negotiate in writing for a different fee, then the new fee schedule applies.
Since 2006, the Center for Medicare & Medicaid Services has refused to
pay for complications related to certain medical mistakes. These
mistakes, so-called "never events," should never occur if routine safety
measures are implemented. The list includes wrong site surgery, leaving
surgical supplies inside patients and medication errors. For a complete
list of "never events," go to:
http://www.cms.gov/AboutWebsite/11_Help.asp
It is important to recognize that the list of "never events" identifies common, easily
definable medical errors; this list is by no means complete. In fact,
most medical errors involve complicated medical issues at work in the
setting of a unique patient. The Institute of Medicine has estimated
that up to 98,000 Americans die each year because of preventable medical
errors. In addition to deaths, there are hundreds and hundreds of
thousands of devastating injuries from medical errors that should have
never happened.
Issue 45: Preventing violence in the health care setting | Joint Commission
The Mishkind Law Firm's David Kulwicki was recently quoted in the Cleveland Plain Dealer regarding so-called "ghost surgeries":
http://www.cleveland.com/healthfit/index.ssf/2010/06/patients_have_specific_options.html
Ghost surgeries occur when a trainee such as a resident or fellow, rather than the experienced attending physician who the patient hired, performs a surgery without the patient's knowledge. It is well-known that the risk of injury increases when inexperienced doctors perform surgeries. Patients have the right to decide who will perform their surgery. If an attending physician represents that he will perform a surgery, but then allows a trainee to do the procedure, the attending violates the patient's right to give informed consent. Mr. Kulwicki, author of "Informed Consent -- An Underutilized Cause of Action," an article that appeared in Trial magazine, explains that the patient's choice of physician is sacrosanct. A ghost surgery, like any other bait-and-switch, is tantamount to consumer fraud. When the ghost surgery results in a complication, the patient can recover compensation.
Lawyers at The Mishkind Law Firm have long known that young residents make costly mistakes, as this recent article discusses:
Many medical errors occur when the new class of residents arrive in early July. They can be too arrogant or headstrong to ask for help from experienced nurses or attending physicians. Or, they can be so green that they don't even realize what they don't know. On the other hand, the residents are supposed to be supervised. Busy attending physicians sometimes fail to properly supervise these new residents when they need it the most. Add to this mix the fact that summer vacations and holidays create more opportunities for patients to fall through the cracks, and the summer months can be particularly dangerous for patients. Despite the well-known risk of avoidable injury to patients hospitalized in July or August, hospitals refuse to make changes to reduce these medical errors.
