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Kickback Schemes or Legitimate Marketing?

Billy Cunningham — Sat, 06 Feb 2010 12:42:32 GMT

The Washington Post a few weeks ago reported that Johnson & Johnson paid tens of millions of dollars in kickbacks to boost sales of its drugs in nursing homes, including an antipsychotic that can be used as a chemical restraint. The Justice Department made these allegations in a lawsuit filed in Boston on January 15, 2010. Prosecutors claim that Johnson and Johnson illegally paid Omnicare, Inc., a pharmacy company that dispenses drugs in nursing homes, to buy its medicines and recommend their use to nursing homes. Under the plan, the governemnt claims Omincare’s purchases of Johnson & Johnson medicines nearly tripled to more than $280 million.

According to the complaint, the payments were sometimes disguised as grants or educational funding. It also claims that Johnson & Johnson used its influence with doctors to get prescriptions switched. Johnson & Johnson came to regard Omnicare pharmacists as an extension of its sales force, the government said, citing a company document.

Johnson & Johnson denies the allegations according to spokeswoman Carol Goodrich who said the company looks forward to presenting its evidence in court.

Hopefully, the scheme did not cause harm directly to residents. One of the drugs the government claims was oversold is a psychotropic drug that can be used as a chemical restraint.

Where money is taken away from resident care to increase profits, nursing home neglect or abuse occurs and injuries and deaths occur. In more and more, nursing home cases we are seeing related companies often owned by the same owners as of the nursing home, providing either pharmaceutical products, therapy services, management services, consulting services, operation services or lease arrangements which take money from the direct care of residents. It does not appear to be an issue in this lawsuit but the allegations cast even deeper suspicions on the owners and operators of nursing homes who are in it only for the money. As Tony West, assistant attorney general for the Justice Department's Civil Division, said in a news release: "Kickbacks such as those alleged here distort the judgments of health care professionals and put profits ahead of sound medical treatment."

Originally posted at InjuryBoard by Billy Cunningham

We Don't Need Tort Reform For Idiots Like These Guys

Pete Mackey — Tue, 02 Feb 2010 18:31:00 GMT

Whenever I get an email pressing the need for more tort reform, that need is demonstrated by some preposterous lawsuit - the armed robber who sues the convenience store for slipping on a spilled drink during his heist or fat guy that sues McFriendly's for raising his cholesterol. What those emails don't tell you is the truth. The armed robber filed the suit from his prison cell without a lawyer and the fat guy's case was dismissed and he and his lawyer were sanctioned. Sometimes they go further - lawsuits that never even happened.

Whatever, you might say - there are frivolous lawsuits filed and many are filed by lawyers. Of course there are. Lawyers are people. Some people are good and earnest. Some people are idiots and greedy. Like every other job market out there, the law has both. That being the case, the drafters of the rules of civil procedure - themselves lawyers - have rules for frivolous lawsuits. Though they should be enforced, most judges who are called upon to do so are hesitant to do so because they are elected officials. Appointing judges in accordance with the Missouri Plan would be a good start.

Step number two would be getting those judges to enforce the rules already in place - with the local and state bar associations backing them up. But the enforcement needs to be uniform. Hospitals, insurance companies and the mortgage industry file the lion's share of civil cases - many of which have no merit. As long as the rules are the same for everyone, our firm is on board.

Originally posted at InjuryBoard by Pete Mackey

Don't Wait When You Feel the Warnings

Pete Burns — Mon, 01 Feb 2010 16:27:51 GMT

Last week we got word that a colleague had a heart attack. He got to the ER right away and turns out he had several symptoms but, luckily, no attack. Scary thing is he’s only 37. I decided to get a refresher on the warning signs. The American Heart Association says that “Movie” heart attacks are sudden and intense. The audience knows what’s happening. In reality, most heart attacks start slowly with only mild pain or discomfort. We should get checked out immediately when the discomfort starts:

Chest discomfort. Most heart attacks involve discomfort in the center of the chest that lasts more than a few minutes, or that goes away and comes back. It can feel like uncomfortable pressure, squeezing, fullness or pain.

Discomfort in other areas of the upper body. Symptoms can include pain or discomfort in one or both arms, the back, neck, jaw or stomach.

Shortness of breath with or without chest discomfort.

Other signs may include breaking out in a cold sweat, nausea or lightheadedness

Women's most common symptom is chest pain or discomfort too but they are a little more likely to experience some of the other common symptoms, particularly shortness of breath, nausea/vomiting, and back or jaw pain.

Originally posted at InjuryBoard by Pete Burns

Intractable Pain - What Is It Worth?

Pete Mackey — Thu, 28 Jan 2010 18:31:13 GMT

I have never suffered a life changing injury. I have represented a lot of folks who have. When I meet with a new client, I let them know that I can feel their pain - not because I have been there myself, but because I have previously worked with so many others who have. Every time I have said those words, they were sincere. But it is easy to become desensitized. A bit of time in the hot seat, however, reminded me of what they go through - every day - for the rest of their lives.

I started feeling bad Monday afternoon. By early evening, fever, chills, headache and general discomfort c hit like a tsunami. Until late this morning, life has been miserable. No position was comfortable. I was too hot or too cold, my coughing doubled me over and my headache never went away. Now, only three days later, I can see the light at the end of the tunnel. By Saturday, I will feel good enough to go to a Senior Bowl party our firm is co-hosting.

When I compare my three days of Hell with my clients' lifetimes of pain, I am embarrassed. But it was sure real when I was going through it. If I ever feel the flu symptoms coming on again and the doctor tells me I can buy my way out of it, I will empty my wallet. I'll borrow money - whatever it takes. Come to think of it, my clients would, as well. They didn't buy into their lawsuits - they would trade all the money they recovered for their good health in a New York second.

But they can't. And their problems aren't over in three days. They don't just jump back on life's merry-go-round. The money they recover hopefully provides whatever physical comfort that is available through medicine, physical therapy or devices. It also provides a psychological parachute for their families. Losing a bread winner is its own, special kind of pain. Whatever amount a person who suffers permanent, intractable pain recovers in a law suit, it never makes up for the pain. The last three days have driven that point home for me yet again. As bad as I felt, perhaps I needed to be reminded of what my clients go through forever.

Originally posted at InjuryBoard by Pete Mackey

Sex and Betrayal: What To Do If You Contract an STD

Pete Burns — Tue, 26 Jan 2010 11:28:11 GMT

Spring Break is upon us, that annual rite mixing unsupervised youth, fluxing hormones, exotic locales, and proximity to countless potential sexual partners. Fueled by drinking and the abundance of visible flesh, participants anonymously engage in the spirit of the moment. Carpe Diem. Consequence is for another day.[1]

Sex can be risky – so says the CDC.[2]

Sexually transmitted diseases (STDs) remain a major public health challenge in the United States. CDC estimates that there are approximately 19 million new STD infections each year — almost half of them among young people 15 to 24 years of age.The cost of STDs to the U.S. health care system is estimated to be as much as $15.9 billion annually.

During spring break many unsuspecting young people contract dangerous sexual diseases. University of Florida officials note the herpes infection rate on campus doubles the week following spring break. Statistics demonstrate that young women are at the most risk, and unfortunately they are the group that bears the most devastating consequences of infection.

This article is directed towards the newly infected young woman.

First, get immediate medical attention, then carefully follow the advice of your doctor. Most STD’s are treatable, if not curable. A good recovery is better than a great lawsuit.

Second, do not infect others and by all means discontinue having relations with the person who infected you! Continuing to have sex with the person who transmitted the disease happens more frequently than anyone would imagine. Perhaps hope for a long term relationship combined with a feeling of diminished self worth explains the phenomena. The good news is that many people develop a safe sex life either with a fully informed and protected partner or with someone who is also infected.

Third, consult a lawyer. Immediate legal advice gives you better options. This article is no substitute for legal advice, but will highlight what to expect.

http://www.youtube.com/watch?v=6LdwZoqtiUQ

[1] A prominent Ob-GYN dispenses this advice when prescribing birth control pills to first time users: First, “no condom, no sex, no exception”. Second, “never tell your date you are on the pill.” This reduces the chance the boy will attempt to forgo the condom.

[2] You can reduce that risk by practicing safe sex. "Safe sex" is a term used to describe responsible sexual behavior aimed at preventing the spread of sexually transmitted diseases, including AIDS. Responsible sexual behavior includes knowing one's sexual partner, being able to openly discuss sexual and drug-use history with the partner, not allowing one's decision to be influenced by drugs or alcohol, and using protective devices (Potter & Perry, 2004).

Originally posted at InjuryBoard by Pete Burns

Speeding - The Numbers Do Not Add Up

Pete Mackey — Mon, 18 Jan 2010 10:52:38 GMT

Everyone is in a hurry these days. I am one of those "everyone." Recently, I missed a flight home and had to spend the night in Houston. There was the sliver of a chance that I could have pulled an OJ Simpson between terminals and made my connecting flight. It was a Friday evening, however, and I lacked the sufficient panic that would have set in on a school night. So I took it easy ... I relaxed. I got home the next day, none worse for the wear.

And so it goes with driving. I hit 45 in the 35 MPH zone because "I'm late, the meeting/tennis match/tv show will start without me." Or, more likely, I am speeding because I am so used to always driving with the "I'm late" mentality. "But Pete," you say, "I am only speeding a little, and it is an important meeting/tennis match/favorite tv show." I know you will say that, because I say it myself.

But how much bang (no pun intended) do you get for your speeding buck? Not much. Consider the facts. A study by Progressive Insurance Company revealed that 77% of its policyholder's accidents occurred within 15 miles of home. More than 50% of those accidents occurred within five miles of home. Let's use the bigger number - how much time is saved on that 15 mile trip. All other things being equal, the 15 mile trip at 35 MPH takes about 26 minutes. That same trip at 45 MPH takes 20 minutes. A five mile trip only saves you about two minutes. Most of our driving trips are five miles or less.

Moreover, driving the speed limit is like doing Tai Chi. You don't care if someone cuts you off. Your knuckles are the same color they were before you started the trip. You don't have the road rage feeling swelling up by mile three. Make a conscious effort to drive at or under the speed limit for your next 10 driving trips. If you do, I will bet that you agree with me. Let stuff start without you

Originally posted at InjuryBoard by Pete Mackey

Harassing Phone Calls

Gaines Drago — Wed, 13 Jan 2010 12:52:57 GMT

Harrassing phone calls by collection agencies have become a constant problem for many people. Originally these calls were coming only to land lines, but no there appears to be no hiding from problem. Have hope, there is some steps that can be taken to prevent the annoyance of these phone calls, letters, or emails. The problem becomes extremely irritating when the individual is not the debtor. Here are some basic steps that can be taken and what the law states.

U.S.C. Tit. 15 Chap. 41 Subchapter V Sec. 1692(b)(c)(d)

The law clearly indicates that and individual should not have to suffer this kind of harassment. Especially if he is not a consumer and has no obligation on the debt.

Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—

(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;

(2) not state that such consumer owes any debt;

(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;

(4) not communicate by post card;

(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and

(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.

(b) Communication with third parties

Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—

(1) to advise the consumer that the debt collector’s further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.

(d) “Consumer” defined

For the purpose of this section, the term “consumer” includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.

(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a (f) or 1681b (3) [1] of this title.

(4) The advertisement for sale of any debt to coerce payment of the debt.

(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

Originally posted at InjuryBoard by Gaines Drago

Nursing Home Incident Reports Should Be Provided

Billy Cunningham — Mon, 11 Jan 2010 09:14:03 GMT

Often in a nursing home case, determining how the incident- a fall, choking, burns- really happened is difficult because the nursing home patient often is unable to describe the event. We have to rely on the caregivers to tell us. To say there are times where they have been reluctant is an understatement. If they made a mistake, the caregivers do not want to be accused of nursing home abuse or neglect. There are ways to get this information.

In almost all nursing homes policy and procedure manuals, there is a requirement that the nursing home conduct an investigation to determine the cause of an incident. Those policy and procedures require the nurse caring for the patient to report the incident. Those policies then require that a pre-printed form be employed to investigate the incident. Each nurse on the shift is to be interviewed and those that have pertinent information are to document the event- usually with a written statement. Then the interdisciplinary team- a group comprised of care givers including nurses, therapists, activity directors, and dietary personnel will review the statements. In addition to all this, most policy and procedures require that the nursing staff do a post incident assessment. This assessment is designed to help the nursing staff determine not only what happened, but what factors created the condition which caused the incident. All of these reports are shared throughout the facility. The ultimate goal is to provide care givers with information so that preventable similar incidents will not occur in the future.

Attorneys who represent nursing home residents will request copies of these records to learn the names of personnel involved, witnesses, status of the patient, and obtain review of the incident close in time to its occurrence when witnesses memories were fresh and untainted by time and the influence of supervisors and defense lawyers. Guess what? Almost inevitably the nursing home will take the position that these records are not to be produced because of a perceived attorney client privilege, work product privilege, or quality assurance protection. Most of the time an attorney can file a motion to compel production of these records and the court will make the nursing home provide them. But what can layman do when there is no lawsuit pending and the family just wants to know what happened?

If your loved one has been injured and there does not seem to be a reasonable explanation from the nursing home, go to the administrator and request the incident report. Often the policy and procedures require that the resident is entitled to a copy of the incident report. Likewise, his personal representative is entitled to a copy. If the nursing home has not performed an incident investigation and made a report, request that they do so immediately. If they still do have not performed an investigation or do not provide a copy of the incident report to you, file a complaint with the regulatory authority in your state. In most states that is the department of public health. Here are the web sites for Alabama and Mississippi, the states where I am admitted to practice: Alabama: http://www.adph.org/HEALTHCAREFACILITIES/Default.asp?id=688 Mississippi: http://www.msdh.state.ms.us/msdhsite/_static/30,0,83.html

Originally posted at InjuryBoard by Billy Cunningham

How do I pick a lawyer to represent me?

Troy Schwant — Tue, 22 Dec 2009 11:59:08 GMT

That is a question that most people face when they have been involved in a car accident or have sustained any type of injury whether the injury was to their body or their finances.

The selection of a lawyer for your case is an important decision, that should not be taken lightly. So how do you make an informed decision? My advice is to talk a lawyer you know that you trust. Now that lawyer may work for the Department of Health, or may do only criminal matters, but if you trust that lawyer, he should be able to point you in the direction of a lawyer that not only handles the type of case you have, but will also direct you to a lawyer he trusts. These are two crucial factors in anyone's decision to hire a lawyer.

If you don't know a lawyer, do your research. Check the firm's webpage, look for websites they are members of, and make an informed decision.

The lawyers that members of Injury Board all would agree that selecting a lawyer to represent you in your case is an important decision that you should not take lightly.

Happy Holidays

Originally posted at InjuryBoard by Troy Schwant

The Cost Of The Healthcare Bill

Pete Mackey — Mon, 21 Dec 2009 08:24:22 GMT

I must admit that, although I have long supported healthcare reform, the onslaught of columns and op/ed pieces screaming about the cost of doing so has had me running scared. On the one hand, even the insurance industry and Big Pharma agreed a year ago that maintaining the status quo would bankrupt the system. On the other hand, a trillion dollars is a lot of money, and making it up by outing fraud in the system runs counter to probable reality.

Trying to rationalize both of these positions is difficult and makes it easier for a person to conclude that maybe we should step back and start over. But we can't do that because we will never get it exactly right. Maybe we don't have to resolve both questions at the same time. That is the thesis posited by Dr. Atul Gawande in his article in the December 14 edition of the New Yorker.

Comparing the current healthcare situation with farming in the early 1900s, Dr. Gawande details the development of pilot programs by the United States Department of Agriculture, including the development of the Extension Service. The complex problems farmers faced then are not unlike the problems we face today in healthcare - both arose from a myriad of causes, with no single, silver bullet solution. The pilot programs mandated by the current Senate bill might just work for heathcare like those programs started by the USDA did for farming. It is definitely worth a read.

Originally posted at InjuryBoard by Pete Mackey