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Economic Crisis: Are People Looking For Lawsuits?

Pete Mackey — Tue, 17 Mar 2009 09:03:55 GMT

My wife and I were at a party Saturday night and the conversation turned to ... what else? The economy. The couple I was speaking with were worried, like everyone should be, about where things are heading. One asked whether I have seen more people wanting to file lawsuits in the last six months. I told her that it would only make sense that this market would heighten someone's sense of being wronged and the need for recompense. But I knew that she was really talking about "frivolous claims," the kind that they believe are choking the system. We agreed that if someone was prone to file a frivolous claim a year ago, they would surely be at least as prone to do so today.

As our conversation continued, it came out that their news came from one place - Fox. It was from this source that they reached their initial conclusion. I opined that there is probably data to support that conclusion, but not as they envision it. Collections agencies are quicker to file lawsuits on unpaid medical and consumer bills, more and more people are filing for bankruptcy when they lose their jobs, lending institutions have a hair trigger for instituting mortgage foreclosures and, yes, people are probably more prone to file lawsuits today.

But the real issue is - why? Is the financial crisis turning consumers into a bunch of whiners who want something for nothing? Common sense would suggest otherwise. It only makes sense that businesses feeling the crunch will be more likely to skirt the law in an effort to protect their bottom lines. Insurance companies will deny claims that they would have honored a year ago. More companies will fire older, higher paid workers in violation of age discrimination laws. Banks will breach credit agreements that they would not in happier times. Scammers, be they individuals or companies, will be scammers.

Most prospective clients that we talk to feel compelled to tells us in the initial interview that they are not "the type to file a lawsuit." We always let them know that we would not represent them if we thought so - judges and juries give awards to those that they believe deserve them. Perhaps the moral in this story is that forming an opinion based only on one source may result in an opinion that is not exactly fair and balanced.

Originally posted at InjuryBoard by Pete Mackey

A Hand For The Folks Who Run This Show

Pete Mackey — Wed, 11 Mar 2009 07:20:56 GMT

I had business in Tampa this week and used the InjuryBoard office for my depositions. It is interesting to "see" this site from a different angle. I ate supper Monday night with Tom, Nick, Angus and Patrick. Most of the conversation centered around InjuryBoard - the philosophy, what works and what doesn't, site improvements, etc. I would encourage any IB members (or anyone else, for that matter) visiting the Tampa area to give them a call. It's like listening to an author read from her newest novel after you read the first two.

What you really see, meeting one on one, is the passion they have for their vision and the thirst for making it better. You do not see that in a lot of businesses. They care for the members, the consumers who come to the site and the message itself. If you found this site looking for help with a legal situation, you found the real deal. If you are a lawyer who is looking at InjuryBoard for the first time, understand that this place is all about changing the national debate about tort reform and related issues with the most powerful weapon there is - the truth. If you are an IB member, feel good about the mission.

Good work guys - and you, too, Marsha.

Originally posted at InjuryBoard by Pete Mackey

The Arbitration Fairness Act Of 2009 - Get Behind It

Pete Mackey — Tue, 10 Feb 2009 16:32:00 GMT

This week, Congressman Hank Johnson from Atlanta, Georgia will introduce the Arbitration Fairness Act of 2009. This is an act which would prohibit mandatory arbitration clauses in consumer, employment and franchisee contracts. Businesses have long touted arbitration as a cheaper and more expeditous alternative to a trial by jury. Even if that were true, which it’s not, why not have your case heard by a judge, whose salary you are already paying with your tax dollars anyway? The decision maker’s cost is only the cost of a filing fee. And as for claims moving faster in arbitration and being cheaper to prosecute – do not bet on it. In our experience, defendants attempt to draw out arbitrations just like they do any other jury or non-jury matter.

Also, arbitrators are generally not neutral decision makers. The prevailing view by lawyers who handle arbitration – lawyers on both sides of the fence – is that arbitration association decisions typically favor industry. I can point you to the personal web page of a lawyer in a large, prominent Alabama firm who touts his success in arbitrations “even in an industry that is known for ‘splitting the baby’.”

Mandatory arbitration is especially unconscionable in employment contracts. Workers have so few rights to start with, requiring mandatory arbitration for those rights that they do have is just plain wrong. The unequal bargaining power held by employers, especially in this economic climate, makes it clear that such agreements are not made voluntarily (at least by the employee) or at arms length.

One of the worse aspects of arbitration is the negative effect that it has on the development of law. In our legal system, particular points of law are developed over time by one appellate court considering what another trial or appellant court has done. Arbitration is all done by behind closed doors. Arbitrators do not have to issue an opinion stating how they came to the conclusion they did and the grounds for an appeal of an arbitrator’s award are extremely narrow, at best.

Please write and call your congressman today. Let them know how this is impacting your job or your life. Let them know what the right to a trial by jury means to you. To me, it is one of the basic underpinnings of a free society.

Originally posted at InjuryBoard by Pete Mackey

Health Care Insurance - ERISA Is Not Your Friend (unless you are an insurance company)

Pete Mackey — Sat, 17 Jan 2009 18:52:46 GMT

When you sue an insurance company for failing to pay your medical bills, chances are that your lawsuit will be governed by the Employees Retirement Income Security Act of 1974. That Act was originally intended to protect participants in company benefit plans by imposing notice and conduct requirements on those running the plans (fiduciaries). Like other roads paved with the best intentions, this one came with the pot holes in the asphalt machine. Huh? Let me explain.

In order to win an ERISA case, you have to show that the fiduciary's denial was "arbitrary and capricious." That is a very tall mountain to climb. In legalese, it means the consumer loses most of the time. On health care claims, the fiduciary function is often handled by the insurance company that provides the coverage. In such a situation, there is a real incentive for the insurance carrier to deny the claim - it leaves the money in the company's pocket. The fox is guarding the henhouse. Fortunately, recent Supreme Court rulings have made it harder for companies to wrongfully deny claims in such situations.

If that is not enough salt in the wound, consider the damages available under ERISA. Traditionally, the big hammer that has kept insurance companies from cheating their insureds is the threat of punitive damages rendered by a jury of twelve. There is no such hammer under ERISA - the Act abolished the right to a jury trial and punitive damages as a remedy. Most states allow an insured to recover those damages against the insurance company that would put the insured back in the position they were in prior to the company's wrongful conduct. If your health care insurance provider wrongfully refuses to pay a $100,000 hospital bill and you lose your house and car as a result, those damages could be substantial. The judgment might even include an award for the emotional turmoil you went through losing your house and car. Not so under ERISA - the only damages you can be awarded is the amount of the medical/hospital bill not paid and an award for attorney's fees, but only if the judge says you get them.

If you are a teacher, work for a religious organization or work in county/state government, ERISA does not apply to your claim - count your blessings. In my next post, I will discuss how to handle a claim denial. If you have had a bad experience with ERISA, tell us your story.

Originally posted at InjuryBoard by Pete Mackey

New Website to Help Families Learn About Nursing Homes

Billy Cunningham — Sat, 14 Nov 2009 08:40:00 GMT

The National Citizens for Nursing Home Reform (http://www.nccnhr.org/ ), a consumer advocacy group for nursing home residents and caregivers in nursing, homes, announced that the Brown University Center for Gerontology and Healthcare Research has introduced a website designed for nursing home researchers that provides data on nursing home care in the US. The website states that its goal is to allow researchers to trace relationships between state policies, local market forces and the quality of long-term care and enable policymakers to craft state and local guidelines that promote high-quality, cost-effective, equitable care for older Americans. NCCNHR believes the site will also be enthusiastically received by many consumer advocates looking for detailed data and more sophisticated comparison tools than provided on other website such as Nursing Home Compare.

The interactive database, www.LTCfocUS.org, incorporates information from a number of government sources-Medicare reimbursement claims, OSCAR (CMS's Online Survey, Certification and Reporting system), the MDS (Minimum Data Set), and Brown's own survey of state Medicaid policies Users can interact with the website by creating interactive maps and tables with comparative information about states, counties, or individual nursing homes. All data provided on the website are also available to download.

The website provides the type information that users can employ to choose up to five variables. It allows the user to create a chart comparing all nursing homes in a state. The broad range of variables from which to choose includes number of beds; for-profit and chain status; percent of Medicare and Medicaid beds; Alzheimer's units; occupancy rates; age ranges, gender and race of residents; direct care staffing (RN, LPN, CNA); acuity of care; certain MDS quality measures; source of admissions (hospital or home); and 30-day rehospitalization rates (a potential indicator of quality not found on Nursing Home Compare).

The website is sponsored by the National Institute on Aging-funded Shaping Long-Term Care in America project housed at the Brown center. While its stated purposes are to "allow researchers to trace clear relationships between state policies and local market forces and the quality of long-term care" and to allow policymakers "to craft state and local guidelines that promote high-quality, cost-effective, equitable care to older Americans," NCCNHR recommends that consumer go to this site to perform their researches about nursing homes in their areas before placing a loved one there. The more you can know about your options for placing loved one in a nursing home , the better equipped you'sll be to help prevent any nursing home negligence or abuse.

Originally posted at InjuryBoard by Billy Cunningham

Contact You Congressman to Pass the Fairness in Nursing Home Arbitration Act

Billy Cunningham — Sat, 31 Oct 2009 10:53:09 GMT

Last January I wrote a blog on the Fairness in Nursing Home Arbitration Act (then Senate Bill . 2838 and now Senate Bill 512) The last report from Congress is that the bill was referred to committee in July. I said then that we all need to keep an eye out for the bill and write our Senators. With Congress in the midst of debating and considering the health package now is a good time to ask them to pass this bill to protect our elderly.

The bill would amend the Federal Arbitration Act (FAA) to invalidate mandatory binding arbitration contracts that are unfair to the elderly because they take away their right to be heard in a court of law and increase their vulnerability to neglect and abuse in a care facility.

The bill does not prohibit arbitration. Rather, it would ensure that the resident or his or her representative could voluntarily choose arbitration after a dispute arose. If arbitration is truly fair and efficient, as some have argued, then both sides should be able to voluntarily choose arbitration after - not before - a dispute arises.

I have seen nursing home corporations insert forced arbitration clauses in their contracts and have them signed by residents who have dementia, by family members who are told they have to sign the whole agreement or their loved one will not be admitted and by the nursing homes own employees who forge signatures. Why do the nursing homes want arbitration so badly? Because it means they will never be held publicly accountable for their actions, no matter how egregious their conduct. Then when a decision is made by most likely a hand-picked arbitrator, the patient is denied the opportunity for judicial review.

On the other hand, if allowed to utilize the court system, society benefits from an open legal process that exposes nursing homne neglect and abuse. One of the most important benefits of civil lawsuits is the discovery process, which often discloses shoddy corporate practices, such as staff reductions, that lead to neglect. Forced arbitration, on the other hand, restricts residents’ ability to get information and keeps abusive business practices hidden.

So again I urge you to contact your representatives in Congress and let’s get this bill passed!

Originally posted at InjuryBoard by Billy Cunningham

We Need the Medical Device Safety Act Passed

Billy Cunningham — Thu, 24 Sep 2009 10:50:15 GMT

In the Spring I wrote a blog about the introduction of the Medical Device Safety Act of 2009. in the Senate. The bill was introduced in response to the U.S. Supreme Court’s ruling in Riegel v. Medtronic, 552. U.S. 2 (2008) where the Court ruled that a medical device manufacturer cannot be sued under state law by patients who claim to have been harmed by the device that received marketing approval from the FDA. I referenced an editorial from the New England Journal of Medicine encouraging Congress to swiftly pass the proposed act. After introduction, the bill was referred to committee but has not come out of committee.

I was curious about how treating physicians felt about the ruling in Riegel and the bill. I interviewed Dr. Fred Meyer, a Professor and the Chair of the Department of Orthopedics at the University of South Alabama in Mobile, Alabama. http://www.southalabama.edu/usahs/hsjoin.pl?docID=261 Dr. Meyer has implanted thousands of medical devices over his career. Orthopedic medical devices allow his patients to return to a more normal life after a serious injury or debilitating illness. He relies heavily on the manufacturer to design and manufacture devices that fit the needs of his patients. A great majority of times those devices do exactly what they were designed to do. When they fail, the consequences to his patients can be grave. If they fail because they were not designed correctly or due to a manufacturer’s error, Dr. Meyer believes, like the editors of the New England Journal ,that his patients should have access to the civil justice system to be compensated. He also told me that he has seen how the civil justice system provides a safety net to his patients from manufacturers who fail to provide devices that are manufactured to specified standards.

He reminded me of the Sulzer hip-replacement debacle. Sulzer designed a hip replacement which was presented to and after testing approved by the FDA. However, after implanting the hip replacement, several surgeons reported cases of early failure which led to an investigation. That investigation revealed the failure arose from an attempt to cut costs which resulted in leaving a residue of machining oils on the backside of the shell of the hip-replacement. This residue inhibited the bone growth necessary for bonding between the shell and pelvic bone. This in effect, caused the shell of the hip-replacement to loosen, scar tissue to form, and in some cases additional bone loss. Patients implanted with this defected product experienced pain in the groin and inner thigh, pain when rising from a seated position, and weight-bearing pain. Due to these severe symptoms, many needed revision surgery. The Sulzer hip-replacement implants were recalled and removed from the market.

Dr. Meyer cited this as a perfect example of how FDA approval does not guarantee the success of a device and how without the civil justice system his patients who suffered unnecessarily would have not been compensated due to a cost saving attempt by a manufacturer. He also told me the story of scheduling a surgery for wrist implant and being assured by the company representative that the device was exactly what he needed only to find out the device was sized wrong. Had Dr. Meyer proceeded with the surgery without recognizing the error, under the Riegel case and without the passage of the Medical Device Safety Act of 2009 or a similar act, that patient will be unable to be compensated because the FDA approved the device. Such a result cannot be the law of this country.

I urge everyone to contact their Congressmen and Senators to urge the passage of an act to protect the public from such injustice.

Originally posted at InjuryBoard by Billy Cunningham

Federal Campaign for Mandatory Use of Anti-Alcohol Control

Billy Cunningham — Fri, 31 Jul 2009 14:26:58 GMT

BLOG

USA Today reports that there is a national campaign against first-time drunk driving offenders which is gaining support throughout the United States. This past year three states enacted laws requiring all first time driving while intoxicated violators to install devices on their vehicles which interlock with the ignition system and measures their alcohol content. If that alcohol content is too high, the instrument blocks the vehicle’s engine from starting.

There is a Bill before Congress called the “Federal Transportation Funding Bill” which may be debated this fall. That Bill requires all fifty states to mandate the device for anyone convicted of drunk driving. If the state fails to pass this Act, it would risk losing federal highway money.

There are forty-seven states and the District of Columbia which have interlocking ignition laws for at least some offenders. South Dakota, Vermont and my own state of Alabama have no such laws.

Presently, there are about 150,000 vehicles in the country that have such alcohol ignition interlocks on them. USA Today estimates that the number would approach one million if they are required for ever convicted drunk driver. Organizations like the Mothers Against Drunk Drivers (“MADD”) estimate that the devices would save 4,000 to 8,000 lives per year.

There are opponents, naturally, including the American Beverage Institute, which is a restaurant and tavern trade group whose spokesman, Sara Longwell, called interlocks a “slippery slope”. She stated that “as this creeping mentality about ‘don’t drink and drive’ as opposed to ‘don’t drive drunk’ takes over, you’re seeing more officers inclined to arrest people” below the legal limit for intoxication. However, in New Mexico, which was a perennial leader in alcohol related crashes and passed an Act in 2005, has seen a thirty-five percent (35%) drop in drunken-driving deaths.

Originally posted at InjuryBoard by Billy Cunningham

Congress Considering Nursing Home Reform

Billy Cunningham — Sat, 04 Jul 2009 16:38:25 GMT

Both houses of Congress are considering legislation to improve nursing home care. There has been no new legislation regarding nursing homes since 1987. Statistics have demonstrated that care provided to our elderly is still not what it should be.

The National Citizens Coalition for Nursing Home Reform (“NCCNHR”) http://www.nccnhr.org/ is pushing Congress to act on the Nursing Home Transparency and Improvement Act which is a part of the draft health care reform bills that the House and Senate are considering. The bills would make nursing homes disclose their owners and operators. Several large chains have been bought out by global private equity investors;. Now a majority of nursing homes are owned by for-profit corporations. The way these companies structure themselves, even our state health regulators can't tell who the owners are. This can create a dangerous situation for the residents, because no one is truly accountable for what happens to them. The reform would also give families a lot more information about the nursing homes that are caring for their loved ones in, including whether they have adequate staff. It would help the federal government get better oversight over these multi-state chains.

The bills include these proposals:

Require nursing homes to disclose their owners and all the myriad related entities that own, finance, or operate them.
Require CMS to collect and report accurate information about the hours of nursing care facilities provide and their turnover and retention rates.
Report enforcement actions on Nursing Home Compare.
Require better state complaint handling and provide resident representatives and workers better protection from retaliation.
Require nursing homes to do more internal quality assurance.
Revise Nursing Home Compare to provide better information.
Pilot independent federal monitoring of nursing home chains.
Hold civil monetary penalties in escrow while nursing homes pursue lengthy and usually unsuccessful appeals. (The House bill would increase CMP amounts.)
Require 60 days notice of closures when nursing homes close voluntarily; prohibit new admissions, ensure appropriate relocation plans, and continue federal funding until residents are relocated.
Include dementia care and abuse prevention in nurse aide training.

To contact your Senator and Congressman you can use the following websiteshttp://www.house.gov/house/MemberWWW_by_State.shtml. For Senators, click on http://www.senate.gov/general/contact_information/senators_cfm.cfm

Here is a draft letter NCCNHR proposes: I want to urge Senator _______ and Senator ________ and Representative ___________ to support nursing home transparency and improvement in health care reform. The elderly and people with disabilities in our state deserve nursing homes that are transparent and accountable, and families need information to make good choices when they choose a nursing home for someone.

Originally posted at InjuryBoard by Billy Cunningham

There Is Trouble In Your Gasoline Can

Pete Mackey — Sun, 07 Jun 2009 18:43:11 GMT

That gasoline can in your garage sure looks safe. You bought it from a big box store - they would not sell it unless it is safe, right? Wrong. In fact, there is a key safety component that most manufacturers fail to install and which can lead to drastic consequences. That component is a flame arrester - a small piece of wire mesh that is installed in the spout. It allows the gasoline to flow out, but blocks gas vapors in. What does this mean in the real world?

Say you are burning trash in a 55 gallon drum. After the trash has burned for a while, the fire goes out, or so you think. You pour some gas on the unburnt trash so that you can relight the fire. Several lawsuits filed around the country allege that severe burns have benn suffered in these situations - caused by the flame in the can mixing with the gas vapors in the gas can spout, causing an explosion. But it does not only happen when the can is emptied on an open flame. Ask Landon Beadore, who age 3 knocked over a gas can in his garage, leading to an explosion that left scarring over half his body. The can he knocked over lacked a flame arrester - a safety device that would have cost the manufacturer less than a dollar to make and install.

Check the gas can in your garage today. See if there is a flame arrester in the spout. If there's not - replace it with one that is so equipped. The manufacturer says that these explosions are only caused by misuse. Landon and his parents disagree. Why gamble?

Originally posted at InjuryBoard by Pete Mackey