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Ohio House Bill 352 overhauls workplace discrimination laws

Author By Bradley M. GibsonPosted on

After years of lobbying from employers and defense counsel seeking to overhaul Ohio’s workplace discrimination laws, Governor DeWine signed House Bill 352 into law on January 12, 2021. The new law tips the scales in favor of employers in workplace discrimination cases. The changes will impact the way employment law attorneys practice and their clients pursue, or defend, workplace discrimination claims. Let’s take a look at some of the most significant changes to the law:

Limits Liability for Individual Supervisors

The new law excludes persons acting directly or indirectly in an employer’s interest from the definition of an “employer” under the Ohio Civil Rights Law. This change means that individual supervisors cannot be held personally liable for workplace discrimination claims if they were acting in the interest of an employer except in limited circumstances. Individual supervisors can be held personally liable if it is determined they acted outside of the scope of their employment, retaliated against the complainant, or obstructed the complainant from pursuing a claim with the Ohio Civil Rights Commission (OCRC).

Establishes a Specific Procedure for Employment Discrimination Claims

Under the current law, plaintiffs can file workplace discrimination claims with the OCRC or in a county court. The new law removes this choice and requires that an individual first file a charge with the OCRC before she may file a civil lawsuit. Once a charge is opened with the OCRC, the agency will begin an investigation. After sixty days, the complainant may request a notice of right to sue from the OCRC. After the complainant receives a notice of right to sue from the OCRC (or more than 45 days have passed without a response to the request) the complainant may file a civil lawsuit. An individual may also file a lawsuit if she obtains a notice of right to sue from the Equal Employment Opportunity Commission (the agency that enforces federal employment discrimination laws).

If the OCRC finds it probable that workplace discrimination has occurred, the complainant will have the choice of allowing the OCRC to prosecute the claim (including attempting to resolve the claim through alternative dispute resolution) or to withdraw from the administrative process and file a civil lawsuit in the county courts.

Statute of Limitations for Workplace Discrimination Claims

For most claims, the current law allows a person to bring a lawsuit alleging violation of the Ohio Civil Rights Law within six years after the alleged discriminatory act occurred. The new law requires a plaintiff to file suit based on workplace discrimination within two years. The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC.

Affirmative Defenses for Employers in Sexual Harassment Cases

The new law affords employers an affirmative defense to a claim for vicarious liability in which an employee alleges that a supervisor created a hostile work environment through sexually harassing behavior. In the typical sexual harassment case, an employee alleges that a specific boss or supervisor subjected the employee to a hostile work environment, and the employee seeks to hold both the supervisor and the company/employer liable. Under the new law, the employer can raise an affirmative defense to these claims if it can prove: (1) that it had an effective harassment policy; (2) that it properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent or promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is basically a re-statement of current federal law governing sexual harassment claims.

Age Discrimination Claims

Plaintiffs have previously pursued employment-based age discrimination claims through a variety of statutory mechanisms. The new law clarifies that age discrimination claims must be pursued through the same avenues in which all other workplace discrimination claims are pursued – i.e. – the process discussed above.

Takeaways

In order to pursue a workplace discrimination claim at the federal or state level, a plaintiff must have an understanding of the administrative procedures required by the EEOC and the OCRC. An individual subjected to workplace discrimination risks losing her claim if she fails to timely pursue an action or fails to adhere to the administrative procedures required to lodge a claim. The Finney Law Firm has experienced employment attorneys dedicated to protecting the rights of employers and employees in the workplace. We can help you navigate these claims at both the federal and state level.

 

 

For more information on this new statute, contact Brad Gibson (513.643.6661).  Read more about our Employment Law practice here.

Ohio Commercial Litigation: Working on “COVID time”

Author By Bradley M. GibsonPosted on
Finney Law Firm attorney Bradley M. Gibson

Litigation attorneys perform much of their work outside the courthouse. There is law to research, documents to review, and motions to write – all of which can be completed remotely with the right technology. But sooner or later, litigation makes it way to the courthouse for a motion hearing or a trial. As the COVID-19 pandemic spreads across the country, trials have been postponed, depositions canceled, and discovery deadlines ignored. What are we – and our clients – to do while the nation weather’s the storm inside our homes?

New legislation on litigation deadlines

Fortunately, the legislature and judiciary have reacted quickly to the developing pandemic and provided much needed guidance. On March 27, 2020, Governor DeWine signed H.B. 197 into law, effectively tolling all statutes of limitations and other deadlines under Ohio law until the state of emergency is lifted or July 30, 2020 – whichever comes sooner.

How do the extensions work?

Statutes of limitation prevent a litigant from having her claims heard in court if she files her case beyond the statutory deadline. In Ohio, for example, an individual has one year from the date of discovering a medical malpractice claim to file a lawsuit. If the would-be-plaintiff files after the expiration of the one-year-period, her case will be dismissed no matter how compelling or meritorious it may appear.

So, how do the new tolling provisions impact our hypothetical med-mal plaintiff? Let’s assume she discovered the malpractice on May 9, 2019. She would then have until May 9, 2020 to file her lawsuit. H.B. 197 now tolls the deadline, retroactive to March 9, 2020 when Governor DeWine issued the state of emergency. Let’s assume the state of emergency is lifted on June 1, 2020. In that case, none of the days between March 9, 2020 and June 1, 2020 will count against our plaintiff. She had two months remaining to file her case when the state of emergency was issued, and she continues to have two months to file from the date the order is lifted. In this scenario, our plaintiff has until August 1, 2020 to file her case.

Changes to Civil and Local Rules affect deadlines

But, in addition to statutory deadlines imposed by the state legislature, the practice of litigation is governed by a litany of deadlines imposed by the judiciary. The Rules of Civil Procedure allow defendants 28 days in which to file a response to a complaint. Local county courts have rules that establish how long a litigant has to file a response to a motion. Each judge sets a calendar order for each case, specifying when discovery is to be completed, dispositive motions are to be filed, experts are to be identified, and when trial is to take place. The list goes on.

To address these issues, the Supreme Court of Ohio issued its own order on March 27, 2020 which tolls the time requirements set forth in all rules promulgated by the State’s high court. The Supreme Court’s Order also applies retroactively to March 9, 2020. Thus, if a defendant’s response to a complaint was due on March 16, 2020, that response will now be due one week after the Court’s Order expires.

What’s happening in practice?

Trial court judges and attorneys are also working to address specific issues on a case-by-case basis. For instance, some in-person hearings can be handled on conference calls, allowing the parties to advance the case where practical. But if your case involves a health care provider, or an entity crippled by the pandemic, the case will likely be put on hold for the duration of the fight.

Technology advantage

In my practice alone, I have had two trials, three mediations, and several depositions all postponed indefinitely. Fortunately, the Finney Law Firm has invested significant resources in technology over the last few years which has allowed us to adapt our practice to meet the needs of our clients while working remotely. We are leveraging cloud-based technology to review and edit documents, obtain electronic signatures, and host video conferences with our clients and colleagues. We can conduct depositions remotely, using videoconferencing technology, when opposing counsel and the particular circumstances of the case allow.

Conclusion

If your case can be advanced in this time, we have the means and wherewithal to do so. Hopefully, sooner than later, we will be able to passionately advocate for our clients in the courts. Until then we are committed to helping our clients navigate the pandemic, and their cases, in these trying times.

Finney Law Firm brings suit in Club Cameo shooting

Author By Bradley M. GibsonPosted on

Until the Las Vegas shooting, we believe this was the largest domestic shooting incident in 2017, at the Club Cameo nightclub on Kellogg Avenue in Cincinnati.

Jennifer Edwards Baker of Fox19.com and the Enquirer.Com has the story today on our new suit on behalf of the estate of one of the two deceased in the shooting, O’Bryan Spikes: New Cameo negligence suit to be filed against Club Manager, police, City

We will post the Complaint when it is filed.

For more information, call Brad Gibson at 513-943-6661.

Commercial Leases: “No right of offset,” what does that mean?

Author By Bradley M. GibsonPosted on

For both landlords and tenants, there is curious and confusing phraseology in many if not most commercial leases relative to the payment of rent:

Rent will be paid without any set-off, counterclaim, deduction or recoupment whatsoever.

That sounds like (and is) a lot of legalese, but what does that mean?

It is, in fact, an important provision of commercial leases.  What it means is simply that rent is due from the tenant without delay or reduction based upon claimed breaches of the lease by landlord.  Thus, if the tenant thinks he has defenses to the payment of rent, or claims against the landlord, he must bring them in a separate court action and not use the tactic of offsetting rent — and delaying an eviction — based upon meritorious or frivolous claims of landlord breach.

The provision is not unnecessarily unfair to one side or the other.  Rather, it is a business term for negotiation between the parties.

From a landlord’s perspective, he is surrendering possession of the Premises to tenant and tenant should, month in and month out, pay him for that possession.  If the tenant is “starving” the landlord of rent, while the landlord has to pay his mortgage, taxes, maintenance and insurance, it is a painful and stacked deck against the landlord.  Further, while each month the tenant is getting the benefit of the bargain by occupying the premises, the tenant may prove uncollectible after months or years of litigation.  Further, landlord does not want to find himself in the position of pursuing rent — all the way through a trial — if the defenses of the tenant are entirely fictitious and manufactured just to buy time against an eviction for a rent default.

From the tenant’s perspective, if the landlord has made his building unoccupiable by severely burdensome practices — noise, dust, odors, lack of access or parking, non-operational elevators, bugs, vagrants, etc. — then why should he tender payment every month only to have to litigate in a separate forum to get some or all of that money back?  Further, a landlord can similarly bleed a tenant dry by extracting rent during the tenancy while failing to maintain his building.  And a landlord may prove judgment-proof as well at the end of litigation.

As a result of the weighing of the interests of the landlord and the tenant, there could be compromise language to sometimes standard form lease “no offset” language — for extreme circumstances that “put a tenant out of business.”  But prying that door open even slightly to give the tenant an “argument” against eviction could lead to months or years of costly litigation against a tenant who otherwise would be paying rent monthly.

# # #

Our firm practices extensively in the area of commercial lease drafting and litigation to enforce the same in Ohio and Kentucky.  We invite you to use our professionals to assist you with your investment properties.  Isaac Heintz leads our practice as it relates to commercial lease drafting and Brad Gibson heads our litigation group for its enforcement or defense.

Ohio tort law: Finney Law Firm entrusted to represent Estate of O’Bryan Spikes for wrongful death in Club Cameo tragedy

Author By Bradley M. GibsonPosted on

Yesterday, the family of O’Bryan Spikes announced that they had retained attorneys Chris Finney and Brad Gibson to represent them and the Estate of O’Bryan Spikes in their claims against those responsible for the Club Cameo tragedy.

Read about that here:

Cincinnati Enquirer >> Family of Cameo shooting victim prepares to sue

WCPO >> Cameo Night Club shooting victim’s family to pursue civil claims for his death

Local 12 >> Family of Cameo shooting victim seeks accountability

WLWT >> Cameo Nightclub shooting victim’s family to pursue civil suit in man’s death

WXIX >> Cameo Night Club shooting victim’s family prepares to sue, seeks public’s help

WVXU >> Family Of Cameo Shooting Victim Preparing Lawsuit

This blog will keep you updated on developments in this case as they occur.

Distinguishing Apologies and Admissions of Fault: Ohio Supreme Court to Determine Admissibility of Doctor’s Statements in Medical Malpractice Cases

Author By Bradley M. GibsonPosted on

The Supreme Court of Ohio is scheduled on April 7, 2017 to hear arguments in the case of Dennis Stewart, Individually, and as the Administrator of the Estate of Michelle Stewart, Deceased v. Rodney E. Vivian, M.D., et al., 2016-1013.  The issue before the court is whether Ohio Revised Code 2317.43, known as The Apology Statute, makes statements of fault or liability made by medical providers while apologizing or commiserating with patients and their families also inadmissible at trial.

The Ohio Apology Statute, O.R.C. 2317.43, was enacted in 2004 with the intention to improve relationships between providers and patients in the case of errors by allowing medical providers to commiserate with patients and their families with the protection that their words would not later be used in a legal action against them.  O.R.C. 2317.43(A) reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

The question before The Supreme Court in Stewart is whether or not statements made by a provider expressing fault or liability while also expressing “…apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence…” are also to be excluded as evidence.

At issue in the underlying case, is whether statements made by the defendant doctor to the plaintiff’s family in the ICU are admissible. The plaintiff alleged that the doctor’s statements were admissions of fault, while the doctor argued it was his intention to apologize about what happened. The doctor filed a motion in limine to exclude testimony concerning this conversation from the trial. The trial court determined that the doctor’s statements were an attempt at commiseration with the family, however ineffective, and that a statement of fault can be included in an apology.

On appeal, the Twelfth District reviewed a 2011 decision of the Ninth District Court of Appeals in the case of Davis v. Wooster Orthopaedics & Sports Medicine, Inc., et al.  In that matter, Leroy Davis, husband of Barbara Davis, deceased, sued Dr. Michael S. Knapic and Wooster Orthopaedics & Sports Medicine, Inc. after Dr. Knapic completely severed Mrs. Davis’s left common iliac artery and lacerated her iliac vein during a lumbar microdiscectomy.  Mr. Davis and his daughter both testified at trial that Dr. Knapic told them he had nicked an artery during the surgery and that he took responsibility for it.  After the jury awarded Mr. Davis $3 million in damages, Dr. Knapic appealed on the grounds that the trial court admitted apology evidence in violation of R.C. 2317.43.  Mr. Davis argued that the court did not admit apology evidence, as R.C. 2317.43 does not prohibit the use of statements of fault, responsibility, or liability. Dr. Knapic argued, however, that a distinction could not be drawn between an expression of sympathy and an acknowledgement of fault because doing so would violate the intent of the statute; the word “apology”, he argued, includes an expression of fault.  Mr. Davis argued that the words of the statute did not intend to exclude a direct admission of fault and responsibility.

In the Davis decision, the Ninth District Court of Appeals recognized that the word “apology” could include “an implication of guilt or fault”, but also noted that upon hearing that someone has died, it is common to say, “I’m sorry” without the assumption of being at fault in the person’s death.  The court, therefore, determined that the word created ambiguity.  In the end, the court opined that when reading the word “apology” in the context of the other words of the statute, “…sympathy, commiseration, condolence, compassion, or a general sense of benevolence…”, that do not express a sense of fault, they believed the statute “…was intended to protect apologies devoid of any acknowledgement of fault.” The appellate court, therefore, ruled that the trial court had correctly admitted the testimony of Mr. Davis and his daughter.

The Twelfth District agreed with the Davis decision in that the word “apology” creates ambiguity in the statute.  They disagreed with the Davis court, however, on the intention of the statute.  The Twelfth District determined that the statute was enacted to provide medical providers the ability to apologize to and to console patients and families without the fear of legal action.  The Stewart court opined that the intent of the statute was to exclude all statements of apology, including those of fault, because a common usage of “apology” is to admit a wrong while expressing regret.  The court further noted that since the statute provides that “any and all” statements expressing apology are to be inadmissible, it can be resolved that the intention was to exclude statements of fault as well.

The Ohio Supreme Court’s decision should help clarify the ambiguity in the statute and resolve the conflict that exists amongst the district courts. It will be interesting to see how the Court interprets the statute in light of evidentiary rules that allow admissions of fault to be to be introduced at trial.

 

 

U.S. Supreme Court Unanimously Rules in Favor of Special Needs Student in Determining the Level of Educational Benefits Guaranteed by Federal Law

Author By Bradley M. GibsonPosted on

The Individuals with Disabilities Education Act (IDEA) requires public schools to provide students with disabilities a “free appropriate public education” (FAPE). In order to meet this requirement, school administrators are tasked with creating an “individualized education plan” (IEP) for their students who qualify for services under IDEA. Generally, a student’s IEP should be tailored to accommodate to the unique needs of a student to ensure that he or she can receive an appropriate education. Since enacted in 1975, the federal courts have struggled with defining what level of educational benefit is guaranteed by the law.

In 1982, the U.S. Supreme Court considered the issue in Board of Ed. Of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley. In Rowley, the parents of a first grade student with a hearing impairment argued that under IDEA their daughter was entitled to an “equal educational opportunity” enjoyed by students without a disability. The Supreme Court rejected the lower courts’ standard relative to “equal opportunity” concluding that a “free appropriate public education” was “too complex to be captured by the word ‘equal’” and required “impossible measurements and comparisons” for courts to make.  The Court, however, made it clear that the law required a “substantively adequate” program of education satisfied by an IEP outlining a program “reasonably calculated to enable the child to receive educational benefits.”

The decision in Rowley provided little guidance to the lower courts that have continued to struggle with the defining the rights of students under IDEA over the last 35 years. Some federal circuits have determined that students are owed “some” benefit under IDEA, while others have ruled that IDEA requires school districts to provide a “meaningful” benefit to students with disabilities. The conflict amongst the circuit courts prompted the Supreme Court to revisit the educational requirements of IDEA last month in the case of Endrew F. v. Douglas County School District. In Endrew, the parents of a student with autism removed him from his public school when they determined that his progress had stalled. The parents enrolled their child in a private school specializing in educating students with autism. After he made vast improvements, the parents returned him to public school where he was given a new IEP. But the parents rejected the new IEP and ultimately filed suit against the school district claiming that it failed to provide their son with a FAPE because the proposed IEP was not “reasonably calculated to enable [their son] to receive educational benefits.”

The case progressed to the Tenth Circuit Court of Appeals which found that the student must be provided “some educational benefit” that must be “more than de minimis” to be adequate. The Tenth Circuit determined that the student’s IEP was acceptable in this case because it was “reasonably calculated to enable [him] to make some progress.”

On appeal, the Supreme Court unanimously rejected the Tenth Circuit’s standard in an opinion authored by Chief Justice John G. Roberts Jr. The Court held that the student’s “educational program must be appropriately ambitious in light of his circumstances.” In refuting the Tenth Circuit’s standard, Chief Justice Roberts explained that, “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”

There is no one standard or clear test that can be applied in these cases as the education of students with disabilities requires a careful consideration of each student’s unique circumstances. The Supreme Court’s decision requires school districts to make these careful considerations in order to provide ambitious educational opportunities for students under IDEA.

Many special education advocates see the Court’s decision as a significant victory for special needs students that raises the bar across the country. But many commentators are hesitant to call the decision a “game changer” for special education, arguing that by and large school administrators are already meeting the Court’s standards. What is clear, however, is that the decision affords special needs students with additional ammunition to advocate for more ambitious and personally tailored IEPs.

Fall 2015 Ohio legislative update

Author By Bradley M. GibsonPosted on

Listed below are legislative bills currently pending in the 131st Ohio General Assembly. If you would like to view full text of each individual legislation, please click on the links below.

S.B.85 – Property-Tax Complaints

Sponsored by Senator Bill Coley (R)

Introduced to the Senate on February 23, 2015, Senate Bill 85 addresses property tax complaints and is currently pending in the Ways and Means Committee. The Bill would amend sections 307.699, 3735.67, 5715.19, 5715.27, and 5717.01 of the Revised Code to only permit property tax complaints to be initiated by the property owner, the property owner’s spouse or representative, or the county recorder. Right now, the current law allows property owners, the property owner’s spouse or representative, the county recorder, a real estate broker, the board of county commissioners, the prosecuting attorney or treasurer of the county, the board of township trustees, the board of education, or the mayor to file a property tax complaint.

S.B.180 – Anti Discrimination-Employment

Sponsored by Senator Joe Uecker (R)

On June 10, 2015, Senate Bill 180 was introduced to the Senate and is now currently pending in the Senate Civil Justice Committee. Senate Bill 180 would make it an unlawful discriminatory practice for an employer to fire an employee without just cause, refuse to hire a potential employee, or to discriminate against someone regarding matters related to employment just because that person exercised a constitutional right within a house or car not owned by their employer. The Bill would also allow a person to file a charge with the Civil Right Commission if they find that another person has engaged in an unlawful discriminatory practice. The Civil Rights Commission would then investigate the unlawful discriminatory practice.

S.B.201 – Nuisance-Vacant Property

Sponsored by Senator Jim Hughes (R)

Under current law, a “nuisance” property is defined as a real property where prostitution, the illegal manufacturing or selling of alcohol, and/or the production of indecent films takes place. Senate Bill 201, introduced to the Senate on August 10, 2015, would expand the definition of “nuisance property” to include any real property where an offence of violence has occurred or is occurring. Real Property also includes vacant land. For purposes of this Bill, an offence of violence has many definitions, some of which are: robbery, kidnapping, murder, assault, child abuse, riots, burglary, domestic violence, arson, and human trafficking. S.B. 201 would also continue to allow the Attorney General to call an abatement proceeding on the nuisance property, which could eventually result in the property being deemed unavailable for use for one year. As of October 14, 2015, S.B. 201 is pending in the Civil Justice Committee.

H.B.134 – Foreclosure-Vacant Properties

Sponsored by Representative Cheryl Grossman (R) and Representative Michael Curtin (D)

House Bill 134, which addresses a number of issues regarding judicial foreclosure actions, is currently pending in the House Judiciary Committee. First, if a residential property appears to be vacant or abandoned, the Bill would allow the mortgage holder to bring a summary foreclosure action against the property. It would also modify the judicial sale procedure by requiring the sheriff to record the deed of a foreclosed property within a certain time period. If the deed is not recorded within a certain time period, the property will be transferred to the purchaser by the recording of the order of confirmation of sale. In regards to unoccupied property, the Bill would allow a municipal corporation to seek an order of remediation against the owner of the property. Lastly, if H.B.134 passes, it would place additional duties on the clerk of common pleas court pertaining to the notification and service of parties involved in a foreclosure action.

H.B.149 – Attorney’s Fees- Actual Damages

Sponsored by Representative Jonathan Dever (R) and Representative John Patterson (D)

Introduced to the House on April 13, 2015 and currently pending in the House Financial Institutions and HUD Committee, House Bill 149 relates to damages and attorney’s fees in housing discrimination cases. The Ohio Fair Housing Law currently prohibits discrimination when it comes to purchasing, selling, or renting a house. Under this Bill, if the Civil Right Commission finds that someone is engaging in unlawful housing discrimination, the Commission is permitted to require that person to pay actual damages and attorney’s fees. The current law requires the assessment of actual damages and attorney’s fees and permits the assessment of punitive damages in regards to housing discrimination claims.

H.B.226 – Condominium Liens

Sponsored by Representative John Rogers (D)

On May 21, 2015, House Bill 226 was introduced to the House and is now pending in the House Commerce and Labor Committee. H.B. 226 would provide that a lien filed by a condominium association against the owner’s interest in the unit has priority over other liens and encumbrances that were previously recorded, with the exception of political subdivision assessments and real estate tax liens. It would also provide that the condominium lien is a continuing lien and is subject to automatic adjustments for additional fees, costs, assessments and unpaid interest.

H.B.281 – Income Tax Deduction-Higher Education

Sponsored by Representative John M. Rogers (D)

Introduced to the House on July 7, 2015 and currently pending in the House Ways and Means Committee, House Bill 281 would allow recent college graduates to take a personal income tax deduction for specific out-of-pocket higher education expenses. Out-of-pocket higher education expenses would consist of: school supplies, books, tuition, fees, any type of equipment that the student would use in or for class, and room and board expenses.

H.B.330 – Equal Pay Certificate

Sponsored by Stephanie Howse (D) and Representative Kathleen Clyde (D)

House Bill 330 would amend multiple sections of the Revised Code regarding contractors and individuals submitting bids or proposals for state contracts and business entities applying for a grant. As introduce to the House on September 14, 2015, H.B. 330 would require contractors, individuals, and business entities to do the following: prohibit an employer from retaliating against an employee who discusses their wage rate or salary with another employee, eliminate sex-based wage discrepancies and obtain an equal pay certificate. This Bill is currently pending in the House State Government Committee.

Student discipline in the smart phone age

Author By Bradley M. GibsonPosted on

 

School administrators have the unenviable responsibilities of both educating our youth and keeping them safe.  As school violence continues to make national headlines administrators are increasingly wary of “off-campus student speech” – think social media postings – made by their students.  How do we balance a school’s need to maintain discipline in the school-setting, with the student’s first amendment rights to free speech?  Do we as a society allow schools to take a more authoritarian approach to disciplining our youth given the spate of violence, or do student’s free speech rights trump the school’s ability to discipline students for conduct that occurs away from the school yard?

The United States Supreme Court established the standard for “on-campus” speech regulation in 1969 in Tinker v. Des Moines.  In that decision, the Supreme Court decided that students who wore black armbands to school in protest of the United States’ involvement in the Vietnam War did not materially or substantially interfere with the operation of the schools or collide with the rights of others.  The Court issued the now oft-quoted refrain that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Yet, at the same time, the Court established that school administrators may restrict student speech that poses a risk of substantial disruption with the work or discipline of the school.

Following Tinker, the Supreme Court continued to refine First Amendment jurisprudence in the public school context, finding that: (1) schools can restrict vulgar and lewd speech (Bethel School District No. 403 v. Fraser); (2) schools can restrict student speech that appears to be sponsored by the school (Hazelwood School District v. Kuhlmeier); (3) schools can restrict student speech promoting illegal drug use (Morse v. Frederick).

The Supreme Court could not have imagined the development of social media and its impact on the student speech when it decided in Tinker in 1969.  As social media continues to expand avenues of communication and expression for our youth, the federal district courts continue to tackle speech issues without further guidance from the Supreme Court.   I first became interested in this issue six years ago in law school while researching student speech issues for a law review article.  Ultimately I published an article that examined off-campus speech in the context of the second circuit’s decision in Doninger v. Niehoff.  In that article, I argued that the Supreme Court’s standard for on-campus speech regulation enunciated in Tinker is workable in the context of off-campus speech. S ix years later the Supreme Court has yet to weigh in on the issue.

The Fifth Circuit Court of Appeals recently addressed the issue in the Bell v. Itawamba County School Board.  In Bell, a high school student and aspiring rapper wrote and recorded a song at a studio unaffiliated with the school and posted the song on his Facebook page and on YouTube using his personal computer.  The song included criticism of and “threatening language against two high school teachers/coaches” who allegedly sexually harassed female students.  In response, the School board suspended Bell and transferred him to an alternative school.  Bell subsequently filed suit against the school arguing that this disciplinary action violated his First Amendment right to free speech.

The District Court granted summary judgment in favor of the school, finding that the school officials acted reasonably.   On appeal, a panel for the appellate court reversed, finding in favor of Bell.  The school then petitioned for the case to be heard by the appellate court en banc, meaning that the entire bench (all of the judges of the court) would hear the case.  Its petition was granted and the appellate court reinstated summary judgment in favor of the school. In doing so, the Fifth Circuit held that the school did not violate Bell’s First Amendment rights.

The Court examined Bell’s case in the context of Tinker and its progeny.  After reviewing these cases, the Court rejected Bell’s arguments that Tinker does not apply to off-campus speech and that, even if it does, Bell’s conduct did not satisfy Tinker’s substantial disruption test.  Instead, the Court held that the school acted appropriately in disciplining Bell because “a school official reasonably could find Bell’s rap recording threatened, harassed, and intimated the two teachers…and a substantial disruption reasonably could have been forecast.”

The Court reasoned that “violence forecast by a student against a teacher does reach the level of the …exceptions necessitating divergence from Tinker’s general rule” and that, due to the advent of new technology such as the internet, smartphones, and digital social media, “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community.”  The appellate court found that the school’s interest in being able to act quickly and intervene before speech leads to violence outweighed Bell’s interest in free speech.  As a result, the Fifth Circuit determined that Tinker’s substantial disruption test applies when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimate a teacher, even when the speech originated off campus.

The Fifth Circuit’s decision illuminates the struggle our federal courts have had in developing a consistent approach to these issues, evidenced by the four dissenting opinions it elicited.  One dissent criticized the majority’s recognition of the school’s right to discipline a student whistle-blower.  Another dissent explained that off-campus, online student speech is a poor fit for any of the First Amendment doctrines and expressed hope that the Supreme Court will soon give the lower courts guidance on how to resolve these cases. The third dissent essentially agreed with the panel majority’s opinion and felt that the en banc majority unnecessarily expanded Tinker to apply in this case.  Finally, the last dissent generally posited that Tinker did not apply to off-campus speech and that, instead, he would apply a modified Tinker standard to allow for the problems current technology poses.  Under even a modified standard, though, the dissenter opined that the school’s discipline of Bell would fail.

As we see in Bell, the courts continue to wrestle with whether and how to apply Tinker and its progeny to off-campus student speech. Ever-increasing technology poses additional questions that the courts will continue to struggle with until the Supreme Court weights in on the issue.

My guess is that Supreme Court will address the question sooner the later. Whether the Tinker substantial disruption test will be adopted for off-campus speech, or some hybrid test is created, remains to be seen. In my mind, although the Tinker Court never imagined the ease of communication in the smart phone era, its test remains a viable and important tool for school administrators to curtail speech when it poses a foreseeable risk of substantial disruption to the school environment.

 

 

Informed Consent in Medical Malpractice Cases

Author By Bradley M. GibsonPosted on

One issue that often arises in medical malpractice cases is whether the doctor properly informed the patient about a surgical procedure and its attendant risks. Ohio law imposes a duty upon doctors to obtain “informed consent” from their patients prior to conducting a medical procedure. But, what exactly qualifies as informed consent? How must that consent be obtained? Does it matter if the surgery is “routine,” “experimental,” or somewhere in between? The Twelfth District Court of Appeals recently considered these questions in the case of Shell v. Durrani.

After 30 years of suffering from chronic back pain, the plaintiff in this case consulted Dr. Durrani who performed a surgery on her in 2007. A year later, the plaintiff again experienced back pain. Dr. Durrani informed her that the screws he had inserted in her spine had loosened and that a second surgery was required. The day before the surgery, the plaintiff signed two separate written consent forms. After the surgery, the plaintiff suffered complications that required two additional surgeries performed by Dr. Durrani. Following these surgeries, the plaintiff suffered from bowel and bladder control issues, nerve damage, pain in her legs and feet, and required a leg brace.

The plaintiff sued Dr. Durrani alleging that he failed to obtain her informed consent before the surgery. The jury ruled in favor of Dr. Durrani. The plaintiff appealed the decision, arguing that the she was entitled to a judgment notwithstanding the verdict because she was not provided with informed consent in accordance with Revised Code 2317.54. This statute provides that a medical consent form should set forth the general terms of the procedure along with what it is expected to accomplish, together with the reasonably known risks and the name of the doctor performing the surgery. It further calls for the consent form to include an acknowledgement that the disclosure of this information has been made to the patient, and should be signed by the patient.

The plaintiff essentially argued that one of the consent forms she executed violated the statute because it did not identify Dr. Durrani as the operating physician, nor did it describe the procedure to be performed. The appellate court was unpersuaded. First, the court noted that a physician is not required to provide a consent form that meets the requirements of R.C. 2317.54. Instead, when a written consent form is executed that meets the statutory requirements, it simply creates a presumption that valid and effective consent was obtained. Failure to comply with the statute does not in and of itself create a lack of informed consent claim. The facts of a case may even demonstrate that informed consent was obtained orally.

As to our questions raised at the beginning of this article, the appellate court stated that a lack of informed consent is established when three factors are met: (1) the physician fails to disclose to the patient and discuss the material risks and dangers inherently and potentially involved with respect to the proposed therapy, if any; (2) the unrevealed risks and dangers which should have been disclosed by the physician actually materialize and are the proximate cause of the injury to the patient; and (3) a reasonable person in the position of the patient would have decided against the therapy had the material risks and dangers inherent and incidental to treatment been disclosed to him or her prior to the therapy. These are the factors that must be analyzed whether the consent was allegedly obtained in writing, or orally.

In Shell, the court determined that the second consent form the patient signed did, in fact, comply with the requirements of R.C. 2317.54 for a presumptively valid informed consent. The court noted that Dr. Duranni had additionally discussed the procedures with the plaintiff orally. As a result, the appellate court upheld the trial court’s dismissal.

Informed consent is just one of the issues to consider for a client who has suffered complications from a medical procedure. Medical malpractice claims may turn on a variety of other facts in any particular case. We frequently meet with potential clients in this unfortunate situation, and understand that their health is an invaluable asset. We evaluate all aspects of their cases in order to protect their future. Please do not hesitate to contact us if you would like our litigation team to review a potential medical malpractice claim.

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