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Ohio Adopts New Residential Property Disclosure Form
By:
John P. Slagter, Esq.
 As
of January 1, 2004, sellers of residential real property
in Ohio are required to complete a new, in-depth version
of the real property disclosure form established by Ohio
Revised Code 5302.30. The Ohio Department of
Commerce has updated the disclosure form for the first
time since its inception in 1993, partly in response to
concerns that the form did not ask specific enough
questions and left too much room for the seller's
interpretation of what he or she had to disclose.
The additional information
required by the revised form should provide a substantial
benefit to purchasers. Although the old form contained a
"catch-all" provision requiring the seller to reveal any
known material defects in addition to those specifically
listed, some sellers assumed that an item not listed on
the form did not constitute a material defect. The
revised form should elicit more detailed information and
reduce the number of items that sellers fail to reveal
based on the belief that items not mentioned specifically
on the form are not relevant or important.
For example, the old form
asked simply whether the seller knows of any "current
water leakage, water accumulation, excess dampness or
other defects" in the basement. A seller could have
reasoned that this language did not require him or her to
reveal other water-damage issues, such as a water pipe
break in another part of the house. The new form
addresses this issue by inquiring further whether the
owner has knowledge of "any water-or moisture-related
damage to floors, walls or ceilings as a result of
flooding; moisture seepage; moisture condensation; ice
damming; sewer overflow/backup; or leaking pipes, plumbing
fixtures, or appliances."
In addition to requesting
more detailed information on topics addressed by the old
form, the revised form adds several new areas of inquiry.
For example, sellers now have to complete questions
regarding any nonconforming uses of the property, whether
there is any smoke damage, whether the property has been
inspected for mold, and whether the property is in a flood
plain or the Lake Erie Coastal Erosion Area. There are
also questions on whether the property is located in a
historical area or subject to assessments from a
homeowners' or condominium association, and whether there
are any boundary line, encroachment, shared-driveway or
party-wall issues affecting the property.
The revised form further
notifies purchasers that that Ohio's Sex Offender
Registration and Notification Law (R.C. § 2950.11, sometimes referred to as "Megan's Law"), requires the county sheriff to notify residents if a sexual
predator resides in the area. The form does not, however,
require the seller to reveal if he or she has actual
knowledge of a sexual predator living in the area, and
specifies that the seller does not make any
representations with respect to "offsite conditions."
In the event that a seller
fails to disclose a known material defect in the property,
the buyer's remedy remains a common law action, usually
for fraud. Revised Code § 5302.30 does not provide a
penalty for a failure to complete the disclosure form
accurately, nor does it provide the buyer with a remedy.
Courts have, however, held that the doctrine of caveat
emptor or "buyer beware" applies to items not listed
on the form. Therefore, a more inclusive form may benefit
the purchaser by reducing the number of items to which
that doctrine is applied.
While the intent of the
residential disclosure form was to reduce disputes
relating to real estate transfers, the amount of
litigation may have actually increased due to disputes
over the interpretation of the form. It remains to be
seen whether the revised disclosure form will succeed in
reducing the number of disputes. As always, seeking the
advice of qualified professionals before entering into a
real estate transaction is the best way to avoid problems.
Editor's note. Thank you
to David Lindner for his help in researching and writing
this article on my behalf. The material appearing in
this article is meant to provide general information only
and not as a substitute for legal advice. Readers should
seek the advice of their attorney or contact John Slagter.
John Slagter is a Shareholder and a
member and Co-Chair of the Real Estate & Construction Law
Practice Group. He can be contacted at
jslagter@bdblaw.com
or 216.615.7331.
The Financial Advantages of Becoming a Florida Resident
By:
Jeffrey D. Weinstock,
Esq.
 Even though the coldest
winter months are over, some Ohioans are still considering
a move to Florida. Aside from the weather differences,
there are many tax and estate planning advantages to being
a Florida resident.
1. Protection
from Creditors. Florida's Constitution exempts the
entire value of one's personal residence from the claims
of most creditors as long as the residence is limited to
one-half acre within a municipality or, if outside a
municipality, up to 160 contiguous acres.
2. Property Tax
Savings. Florida's real estate homestead exemption
reduces the taxable value of your primary residence by
$25,000 if you owned the property as of January 1. This
exemption can result in substantial savings on property
taxes.
3. Cap on
Increases in Real Estate Taxes. Florida's
Constitution limits the annual increase in the
tax-assessed value of homestead property to three percent
per year or the increase in the consumer price index,
whichever is lower. Since the residential real estate
market in Florida is appreciating rapidly, this limitation
can result in substantial property tax savings. It is
important to keep in mind that this cap on real estate tax
increases applies only to primary homes of
Florida residents, not to winter
or second homes in Florida.
4. State Estate
Taxes. The Florida Constitution prohibits the
imposition of a Florida death tax, but currently the state
imposes a "pick-up" tax that has a similar effect to a
state death tax. However, in 2005 the pick-up tax will be
phased out, and Florida will have no state estate tax.
Ohio, on the other hand, will retain its estate tax. The
state tax rates are graduated and range up to $23,600 plus
7 percent on the portion of a taxable estate in excess of
$500,000.
The difference in state
death taxes can have a significant effect. For example,
an Ohio resident who dies in 2005 with a taxable estate of
$3 million would pay state death taxes of almost $200,000.
As a Florida resident, however, the same person would pay
no state death tax.
5. Personal
Income Tax. Another advantage to being a Florida
resident is the absence of state income tax. The Florida
Constitution prohibits the levy of an individual state
income tax on its residents. A Florida resident is
subject to an intangible tax based on the value of stocks
and bonds. With exemption amounts of $250,000 for an
individual and $500,000 for a married couple and low tax
rate ($1.00 per thousand), however, this can be a
relatively low tax burden - and it can even be avoided
altogether. Furthermore, Florida is considering phasing
out this tax. Nevertheless it can be avoided by several
methods, including creating an intangible tax trust.
To benefit from Florida's
financial advantages, you have to make Florida your "true,
fixed and permanent home." In addition, it is important
to make sure not only that you are a Florida resident, but
that you are no longer an Ohio resident. Your BDB
attorney can help ensure that you become legally domiciled
in Florida and avoid claims that you are subject to Ohio
taxes.
Jeffrey Weinstock is an Associate and a
member of the Business Law, Health & Medicine and Taxation
& Employee Benefits Practice Groups. He can be contacted
at jweinstock@bdblaw.com
or 561.999.3093.
Stabilization
Requirements Under The Emergency Medical Treatment And
Active Labor Act
By:
Thomas R. Himmelspach, Esq. and
Philip E. Howes, Esq.
This article is the
second of a three-part series on federal- law duties
 imposed on emergency medical care providers. Under a
federal law called EMTALA, those include the duty to
stabilize patients before discharge or transfer. This
writing discusses the circumstances where the EMTALA
stabilization duty arises and the standards under which
it applies.
In 1986, Congress enacted
the Emergency Medical Treatment and Active Labor Act (EMTALA),
designed to prevent hospitals from turning away or
transferring indigent patients without appropriate
screening or treatment. The duty is owed by providers
who have executed Medicare provider agreements with the
federal government.
Although the Act was intended to protect indigent
patients, it applies to all.
EMTALA imposes three
primary duties on emergency medical care providers: (1)
to provide appropriate screening to identify an
"emergency medical condition";
(2) if the screening discloses that the patient has an
emergency medical condition, to stabilize the patient
before discharge or transfer; and (3) if the care
provider is unable to stabilize the patient, to meet
certain conditions before a transfer.
A. The
stabilization duty applies to patients being transferred
or discharged.
Under the prevailing
view, stabilization requirements apply only where the
provider has actually identified the condition.
If the provider has performed an appropriate screening
and discharged or transferred a patient without
identifying an emergency medical condition, it is not
liable under EMTALA for failing to stabilize the
condition, even though it may have been negligent in
failing to diagnose the condition.
For example, in
Cleland v. Bronson Health Care Group, Inc.,
a 15-year-old who came to a hospital emergency room with
complaints of vomiting and abdominal cramps was
diagnosed with flu and discharged four hours later. In
fact, the child was suffering from intussusception, a
condition where part of the intestine telescopes into
itself. He died within 24 hours of the discharge.
Plaintiffs sued alleging breach of the EMTALA duty to
stabilize. The circuit court affirmed the district
court's grant of judgment for the defendant on the
pleadings, holding "[i]f the emergency medical condition
is not identified i.e., known, the hospital cannot be
charged with failure to stabilize a known emergency
condition."
Once the care provider
determines that the patient has an emergency medical
condition, it has the duty to use measures appropriate
under the circumstances to stabilize the patient. The
duty is limited, however, to circumstances where the
patient is discharged or transferred, and most courts
have held it does not continue after the patient is
admitted.
In Bryan v. Rectors
and Visitors of the Univ. of Va.,
a patient came to a hospital emergency room in
respiratory distress and was admitted. Twelve days
later, against the wishes of the family, the hospital
entered a do-not-resuscitate order. The patient suffered
a fatal heart attack a week later. The plaintiff
alleged that the hospital violated EMTALA by failing to
maintain stabilizing treatment, but the court granted
summary judgment to the defendant, holding that the duty
to stabilize ended upon admission. The court wrote that
"[t]he stabilization requirement is thus defined
entirely in connection with a possible transfer and
without any reference to the patient's long-term care
within the system."
The court added that once admitted, the patient becomes
the legal responsibility of the hospital and treating
physicians "[a]nd the legal adequacy of that care is
then governed not by EMTALA but by the state malpractice
law."
In
Scottsdale Healthcare,
Inc. v. Arizona Health Care Cost Containment Sys.
Admin.,
however, the court decided the issue differently,
holding that the stabilization duty continues until the
patient has been stabilized, whether or not she has been
admitted. The court wrote that "whether a patient
suffers from an emergency medical condition does not
depend upon the type of bed or facility the patient may
be in at any given time." The court held that the
stabilization duty continued so long as "the absence of
immediate medical attention could reasonably be
expected" to cause an emergency medical condition as
defined in 42 U.S.C. 1395dd(e)(1)(A).
Furthermore, at least one
court has noted the risk that a hospital may improperly
admit a patient as a way of avoiding EMTALA
stabilization liability. In
Bryant v. Adventist
Health Sys.
the court held
that "[i]f a patient demonstrates in a particular case
that inpatient admission was a ruse to avoid EMTALA's
requirements, then liability under EMTALA may attach."
B. The
stabilization duty is to provide appropriate treatment
to prevent a patient's material deterioration during
transfer or on discharge.
A series of court
decisions has established the standards underlying the
requirement to stabilize emergency patients before
transfer. The stabilization duty requires that the care
provider "assure, within reasonable medical probability,
that no material deterioration of the condition is
likely to result from or occur during the transfer of
the individual from a facility." EMTALA requires treatment appropriate for the patient's
present and projected needs.
In deciding whether the care provider has met the
stabilization requirement, the fact finder is to
consider whether the treatment and subsequent release or
transfer were "reasonable in view of the circumstances
that existed at the time the hospital discharged or
transferred the individual."
A medical care provider
does not necessarily meet its stabilization duty under
EMTALA by following a protocol for treating patients
with a particular condition, that is, by providing a
uniform measure of treatment. As discussed in our
previous Advisor article on this topic, the
EMTALA screening duty requires only that the hospital
give all patients the same measure of attention in
emergency medical care screening. The uniform-treatment
test that applies to the screening duty does not apply
to the stabilization duty.
For example, in In the
Matter of Baby "K,"
an anencephalic infant was admitted to a hospital on
three separate occasions after presenting at the
emergency room in respiratory distress. The hospital
sought declaratory judgment that its stabilization duty
required only that it provide warmth, nutrition, and
hydration to the child, i.e., the same treatment
it would provide other anencephalic infants. The
district court denied the declaratory judgment. On
appeal, the circuit court affirmed, holding that the
stabilization duty required it to provide respiratory
support to the child and that it was insufficient to
show only that it provided uniform treatment.
Whether or not the
patient is stabilized at the time of discharge or
transfer is typically a judgment call, and courts
evaluating that judgment review the record for signs of
acute distress. In Cleland v. Bronson Health Care
Group, Inc.,
the court held that the hospital had met the
stabilization duty when it discharged a patient with a
misdiagnosis and the patient subsequently died. The
court noted "[t]o all appearances, the plaintiff's
condition was stable. He was not in acute distress,
neither the doctors nor the patient or his parents made
the slightest indication that the condition was
worsening in any way, or that it presented any risk that
might become life-threatening, or that it would worsen
markedly by the next day."
C. Conclusion
Courts have recognized
the EMTALA stabilization duty as a measure to assure
appropriate emergency medical treatment and to afford a
remedy that might otherwise be lost, noting that under
traditional tort law hospitals owed no duty to provide
emergency care to all.
Last summer, Lawyers Weekly reported a $5 million
recovery on an EMTALA stabilization claim arising out of
the death of a patient who was being transferred from a
Massachusetts hospital. The hospital argued that that
patient appeared stable when he left the facility and
that it was unequipped to give the surgical care needed
by this 500-pound car accident victim although it had
taken all available appropriate measures to treat the
patient, who was also intoxicated and under the
influence of cocaine.
Apparently the fact that the patient died during
transfer outweighed the hospital's evidence and led to
the $5 million recovery under EMTALA.
Hospitals transferring or discharging patients from emergency rooms face liability risks where the patient's stabilization is tenuous. Where courts have granted defense summary judgments, the opinions typically note the care records documenting vital signs and the patient's expressed feelings of improvement. The liability risks, as evident from the Massachusetts case noted above, underscore the importance of careful and thorough documentation of patient care, monitoring, and assessment.
Thomas Himmelspach is a Shareholder and a
member of the Health & Medicine Law
Practice Groups. He can be contacted at
thimmelspach@bdblaw.com
or
330.491.5284.
Philip Howes is a Shareholder and a
member of the Health & Medicine Law
Practice Groups. He can be contacted at
phowes@bdblaw.com
or
330.491.5239.
Emergency Medical Condition is defined by statute as
"a medical condition manifesting itself by acute
symptoms of sufficient severity (including severe
pain) such that the absence of immediate medical
attention could reasonably be expected to result in
- (i) placing the health of the individual ... in
serious jeopardy, (ii) serious impairment to bodily
functions, or (iii) serious dysfunction of any
bodily organ or part. 42 U.S.C. §
1395dd(e)(1)(A).
New Buckingham Attorneys
Since
our last Advisor, Buckingham has had a host of
wonderful attorneys join the Firm. We would like to take
this time to welcome them to the BDB family.
Buckingham Boca RatonSM
H. Michael Muñiz - Litigation
Scott J. Topolski - Litigation
Buckingham CantonSM
Barbara A. Knapic - Workers' Compensation and Employment
Law
Kristina M. Harless - Employment Law and Workers'
Compensation
Buckingham ColumbusSM
Kenneth A. Fisher, Jr. - Real Estate & Construction Law
Michael F. Copley - Real Estate & Construction Law
Buckingham CLEVELANDSM
Ryan J. Morley - Litigation
Christopher L. Parker - Health & Medicine
Kudos
 Bret A. Adams
(Buckingham ColumbusSM)
has joined the Columbus Sports Commission's Advisory
Board. This group of civic leaders works to attract
professional, collegiate, and amateur sporting events to
Columbus. Although only formed in 2002, it has already
attracted regional NCAA basketball games, the Frozen Four
men's hockey national championship , and the men's College
Cup soccer championships, among other achievements.
 In
March 2004,
Mary Sue Donohue, Esq.
 and
George
Weistein, Esq. were inducted into the Mitzvah Society
of The Jewish Community Foundation in South Palm Beach
County, Florida.
Practicing in Buckingham Boca RatonSM
 If
you do business or have a residence in Florida, we want to
remind you we have a Florida office staffed with
outstanding attorneys. Our Florida office can address
business, estate planning, financing, intellectual
property, litigation, employment, and real estate matters,
to name a few. We welcome the opportunity to provide
legal services when you are traveling to Florida.
For
additional information, contact us at 1.800.686.2825.
Speaking Out
Save the Date for these Upcoming Presentation:
On June 23,
2004,
David L. Drechsler and
David W. Woodburn will be speaking at the Stark County Bar Association on
Complex Probate Litigation.
On July 12,
2004,
Gerald B. Chattman
will be a presenter at the National Business Institute
sponsored seminar titled "Exempt Organizations and
Charitable Activities in
Ohio."
Please contact NBI for additional information at
www.nbi-sems.com or 800.930.6182.
On July 19, 2004,
Scott J. Topolski will be a presenter at the
National Business Institute sponsored seminar titled
"Advanced Collections Strategies in Florida".
His presentation will address the following topics:
1.) Avoiding Problems with Consumer Protection
Legislation; 2.) Enhancing Collectability Prior to
the Judgment.
Please contact NBI for additional information at
www.nbi-sems.com or 800.930.6182.
Out and About - Recent Presentations:
Business Practice Group
Steven A. Armatas (Buckingham CantonSM)
spoke at the Jackson Belden Chamber of Commerce
Business Symposium on "Starting a New Business."
Stephen M. Hammersmith (Buckingham AkronSM)
presented at Buckingham's 2004 Annual Real Estate &
Construction Law Seminar. His topic was "Pitfalls of
Commercial Construction Financing."
Employment Law Practice Group
Tod T. Morrow (Buckingham CantonSM)
presented
"Employment Law for Small Business Owners" at the
Jackson Belden Chamber of Commerce Business Symposium.
Jan E. Hensel (Buckingham
ColumbusSM)
spoke for the Ohio Council for Home Care on "Effective
Employee Relationships."
Health & Medicine Law
Practice Group
Stephen P. Griffin and
Richard S. Milligan (Buckingham CantonSM)
served as moderators for a presentation co-sponsored with
the Stark County Medical Society titled "Medical
Malpractice in Stark County: A View from the Bench".
Litigation Practice
Group
Edward T. Kennedy (Buckingham CantonSM)
spoke at the
Jackson Belden Chamber of Commerce Business Symposium on "Intellectual
Property in Business."
Real Estate &
Construction Law Practice Group
James L. Fisher (Buckingham AkronSM)
presented
"Options in Lease" at Buckingham's 2004 Annual Real
Estate & Construction Law Seminar.
Nicholas T. George (Buckingham AkronSM)
and
David J. Lindner
(Buckingham ClevelandSM)
were co-presenters on "Ten Important Points About
Condominium Law" at Buckingham's 2004 Real Estate &
Construction Law Seminar.
John P. Slagter (Buckingham
ClevelandSM)
provided opening and closing remarks as well as
introductions of speakers at
Buckingham's 2004 Annual
Real Estate & Construction Law Seminar.
David W. Woodburn
(Buckingham AkronSM)
spoke at Buckingham's 2004 Annual Real Estate &
Construction Law Seminar on "Changes in Ohio Property
Disclosure Form
Trusts & Estates
Practice Group
Dianne Blocker
Braun (Buckingham CantonSM)
presented
to the Women's Network Group at the Massillon
Museum on "Charitable Giving."
David W. Woodburn
(Buckingham AkronSM)
gave a presentation on "Business Succession and
Estate Planning" at the Jackson Belden Chamber of
Commerce Business Symposium.
INFORMATION ON
SEMINARS OR SPEAKERS If
you are interested in obtaining information on upcoming
seminars or would be interested in having speakers from
Buckingham, Doolittle & Burroughs, LLP make a presentation
to your organization, please contact: Lorna Henderson, Client Relations
Administrator, at
lhenderson@bdblaw.com or 800.686.2825 ext. 473. |
This issue of the
Advisor brings you updates on a range of topics.
First, John Slagter, a shareholder in our Cleveland
office, explains the changes to the Ohio residential
property disclosure form. The new form, which requires the
seller to answer many more questions than were in the old
form, is intended to reduce the volume of disputes arising
from residential real estate transactions. Second is an
article by Jeffrey Weinstock of the Firm's Boca Raton
office outlining the tax and estate planning advantages to
moving to Florida. Upcoming changes in Florida's tax code
will make this move more financially advantageous than
before. The final article in this issue is by Thomas
Himmelspach and Philip Howes. It discusses the necessity
for hospital emergency rooms to stabilize patients before
discharging or transferring them. This article is the
second in a three-part series by Tom and Philip, who are
located in Canton, on the federal law known as EMTALA.
