The Equine Immunity Statute

The Ninth District Court of Appeals recently reviewed a case where it compared the Equine Immunity Statute (R.C. 2305.321) with the statutory cause of action for injuries sustained as a result of another person’s dog (R.C. 955.28).  In Graham v. Shamrock Stables (9^th Dist.), 2014-Ohio-3977, Graham was at Shamrock Stables looking at a horse to adopt.  A dog harbored on Shamrock Stables’ property allegedly barked and jumped at the horse’s back legs.  The horse in question became spooked, swung around and knocked Graham to the ground.  As a result of the fall, Graham seriously injured two of her fingers.

Graham argued that the Equine Immunity Statute did not apply because her injuries were the proximate result of the dog; therefore, the injuries are compensable under R.C. 955.28.  The Court disagreed.

To prove a statutory cause of action pursuant to R.C. 955.28, the plaintiff must prove ownership or keepership of the dog, that the dog’s actions were the proximate cause of the injury, and damages.  However, the Equine Immunity Statute provides immunity from liability for harm sustained by an equine activity participant allegedly from the inherent risk of equine activity. 

Graham was an equine activity participant.  The “inherent risks” include the unpredictability of an equine’s action to other animals.  Graham concede that immunity would exits if she were bringing suit against Shamrock Stables as a sponsor or an equine activity.  Graham stated there was no immunity because her suit arose from the injuries she received as a proximate result of the dog, not that the horse reacted to the dog. 

The Court looked at the plain language of the Equine Liability Statute.  Since the General Assembly did not exempt an equine’s reaction to dogs, the horse’s reaction to the dog would qualify as an inherent risk of equine activity.  Therefore, Shamrock Stables was entitled to immunity.

Judge Carr dissented, stating that the general immunity provision in the Equine Immunity Statute must yield to the exception created by the special provision in R.C. 955.28 for injuries occasioned by dogs.  

John Izzo, Esq.

Ohio Veterinary Medical Licensing Board Update

John Izzo attended the Veterinary Medical Licensing Board meeting on October 8, 2014.  The Board is still one veterinarian short.  There was some discussion about what to do with veterinary clinics that do not provide two weeks notice of their hours.  It was decided to remind the clinic the first time they are late.  It appears there will be a penalty if the paperwork is received late a second time.  It was determined that the Ohio Department of Health and local health departments must comply with the Veterinary Medical Practice Act and the rules promulgated thereunder.  Several complaints were reviewed by the Board.  It appears that at least two Notices of Opportunity for Hearing will be issued.  The next Board meeting is November 12, 2014.

Racing Commission Meeting

John Izzo attended the Ohio State Racing Commission Meeting on September 30, 2014.  No days were approved for live racing in 2015.  At this time, it looks like Dayton will race 75 days, Miami Valley will race 89 days, Northfield Park will race 214 days, Scioto Downs will race 100 days, Belterra will race 93 days, Mahoning Valley will race 100 days, and Thistledown will race 100 days.  

The Chairman talked about the Best of Ohio and the five races that will go with purses of $150,000 each.  The Chairman also talked about the nine Standardbred races that went this past Saturday at Scioto Downs, each with $200,000 purses.  Neither Northfield Park nor Betlerra have reached agreements with their respective horsemen’s groups as to VLT revenue.  Although agreements were to be in place no later than six months after the VLT’s began at their racetracks, the Commission has continued to give Northfield Park additional time to work with the Ohio Harness Horsemen’s Association.  

The next Commission meeting will be held on October 23, 2014.

Veterinary Medical Licensing Board Update

John Izzo attended the September 17, 2014, monthly meeting for the Ohio Veterinary Medical Licensing Board.  The Board is still one member short, one of the veterinarian appointments.  Dr. Kidd, Dr. Kolb, and Dr. Redman continue to be active in the AAVSB.  Jack Advent from the Ohio Veterinary Medical Association addressed the Board with his concerns about a new Ohio Department of Health rule regarding radiographs.  There was a healthy discussion about an RVT applicant with a criminal history, who received her certificate of registration under a 4-1 vote.  The Board reviewed new complaints and responses received to old complaints.  In one case, the Board discussed its ability to take an action against a veterinarian who did not know that his staff provided unnecessary medication to a patient.  In this case, the Board decided not to take any disciplinary action because of the veterinarian’s lack of knowledge.

Ohio State Racing Committee Meeting

John Izzo attended the Ohio State Racing Committee Meeting on August 27, 2014.  All five Commissioners were present.  Officials were approved for Dayton Raceway, although they have yet to name all officials.  Scioto Downs cancelled racing on August 21 due to inclement weather and track conditions and will make it up on September 9.  The wagering pool manipulation at Thistledown was discussed, with the executive director assuring that the participants will not be allowed to use the same ADW again.  Another two million dollars from casino taxes were distributed.  Rule review was discussed and referenced the Rules Committee Meeting that was held last month.  Resolutions were passed to allow amendments to some rules and no changes to most.  Over one million dollars was released from the escrow account for purses on Super Night and Aged races at Dayton Raceway.  The OHHA and Northfield Park have not reached an agreement on VLT funds; neither has the HBPA and Belterra.  Chairman Schmitz stated he wanted to have circuit racing next year and did not want live days to overlap.  2015 live race dates will be discussed at a future meeting.  Additional money will be spent in the Thoroughbred Race Fund for overnights and for supplements.  

Failing to Cooperate, Worse Than Underlying Conduct - State Medical Board of Ohio Board Meeting

Failing to Cooperate, Worse Than Underlying Conduct

On August 13, 2014, the State Medical Board of Ohio reaffirmed a long standing policy when ordering an indefinite suspension to a physician who failed to cooperate with a Board investigation.

The underlying issue in the case involved a single patient simultaneously obtaining prescriptions from multiple providers. "Dr. T.” was one of the providers duped by the drug seeking patient. From the hearing record, Dr. T. had significant exculpatory and mitigating evidence in support of his clinical care to the patient. However, when contacted by Board investigators, Dr. T. repeatedly ignored requests for information. It is possible that Dr. T. would have an unrestricted license today if he had only demonstrated compliance with the Board.

Often, medical professionals find the prospect of speaking with Board investigators intimidating and daunting. These feelings are not unjustified. However, doing nothing has the potential of bringing an even greater negative impact on the medical professional’s ability to practice.

            

Most law firms, including Graff & McGovern, L.P.A., provide free initial consultations. The advice and assistance of experienced legal counsel can potentially save medical professionals hundreds of thousands of dollars in lost revenues relating to formal Board proceedings. (Including the adverse impact from suspension of professional licenses, loss of staff or admitting privileges, exclusion from participation in third-party reimbursement programs, etc.) But the embarrassment and stigmatism of a formal disciplinary action accompany all cases even when lost revenue is minimal.

            

Speaking to Board investigators without first consulting competent legal counsel is unadvisable, but ignoring a Board investigation can potentially be much worse to the licensee or applicant, as Dr. T. now knows. If you have specific questions, or if you have been contacted by a Board investigator and desire a free consultation, please call Graff & McGovern, L.P.A., today at (614) 228-5800.

Ohio Casino Control Commission Meeting

John Izzo attended the Ohio Casino Control Commission Meeting on Wednesday, August 20, 2014.  The meeting started off with Executive Director Matt Schuler informing the Commission that Scientific Games was going through yet another merger.  Attorney Matt Oyster addressed the Commission, explaining that the Commission’s jurisdiction includes illegal casinos, which would be establishments that illegally house gaming other than the four allowed by the Ohio Constitution, certain charitable gaming, games of skill, and games regulated by the Lottery Commission.  Rock Ohio Caesars entered into a settlement agreement in which it agreed to pay a $200,000.00 fine.  Two report and recommendations were before the Commission, with each licensee having their license revoked.  One report and recommendation was modified by the Commission; the Commission disagreed with the hearing examiners determination that a OMVI--which did not affect an applicant’s suitability for a license--should be considered to affect suitability as a licensee.