Hawaii Personal Injury Blog - Insurance

Insurance Reform Now!!

Wayne Parsons — Sat, 17 Oct 2009 13:29:09 GMT

The most important consumer legislation in the last 50 years is presently moving in Congress with Senator Patrick Leahy, VT. leading the way. Senator Leahy Submits Legislation For Insurance Reform - Wayne Parsons - October 16, 2009. The insurance industry is the most political, and many say the most politically corrupt, industry in the U.S. Congress is generally afraid of the insurance industry because they will pour unlimited funds into the next election to get rid of any elected official that dares cross them. Its all about money. Their motto?

We accept your premiums and deny your claims!

Senator Leahy has courage and he cares. We all must support him vocally in the battle that is about to happen as he takes on Big Insurance. Both President Clinton and President Obama ran for President with a promise to take on the insurance industry. President Clinton never got to first base on that vow and President Obama appears to be caving in to the pressure and making back room deals with Big Insurnace and the insurance lobby led by the U.S. Chamber of Commerce and Karl Rove.

I was reminiscing about a similar battle years ago in California when Harvey Rosenfield took a grassroots initiative battle into the board rooms of the insurance companies in California. Prop 103 passed because Rosenfield asked the California voters what they thought about the insurance industry and their answer was loud and clear: stop insurance abuse and enact insurance reform!

Please support Senator Leahy and be vocal about insurance industry reform. Without vocal public participation the fat cats and robber barons will win the day.

Originally posted at InjuryBoard by Wayne Parsons

Senator Leahy Submits Legislation For Insurance Reform -

Wayne Parsons — Fri, 16 Oct 2009 12:20:58 GMT

In spite of all the hem-hawing and confusion surrounding American health care reform, one senator is taking initiative.

Senator Patrick Leahy, of Vermont, has recently introduced the Health Insurance Industry Antitrust Enforcement Act into Congress, which would eliminate current antitrust exemptions for the insurance industry, thereby making them function like almost every other business in America. Since 1945, health insurance companies have been exempt from anti-trust regulations, which has shielded them from many of the same free-market factors that affect other businesses in our country. According to Leahy,

The two key provisions of the Health Insurance Industry Antitrust Enforcement Act will repeal the federal antitrust exemption for health insurance and medical malpractice insurance companies for flagrant antitrust violations, including price-fixing, bid rigging, and market allocations, and subject health insurers and medical malpractice insurers to the same good-competition laws that apply to virtually every other company doing business in the United States.

This reform would greatly help the American people, since it would subject health insurance companies to the same effects of competition and good business that affect the rest of our country's economy. Since they would no longer be protected for mistreating their customers, they would have to compete to offer better service, which would lead to better health care coverage for average Americans who are now paying exorbitant premiums and being dropped by insurance companies at the first sign of physical ailment.

The Washington Independent quotes Robert Hunter one of the great commentators on the insurance industry:

... Robert Hunter, Director of Insurance for the Consumer Federation of America and former Federal Insurance Administrator under Presidents Ford and Carter, saw it differently. In his view, the antitrust exemption, intended initially to be temporary but made permanent during closed-door conference committee sessions of Congress more than 50 years ago, must be repealed to overcome the insurance industry’s anticompetitive practices that have led to higher prices and reduced services. “It is high time that insurers played by the same rules of competition as virtually all other commercial enterprises operating in America‘s economy,” he testified.

According to Hunter, health insurance companies have been able to consistently pay less on claims by agreeing to lower the amounts they reimburse doctors and hospitals for services; adopting similar clauses in their contracts that limit their liability in unfair and abusive ways; agreeing to cut back coverage to certain places, and using similar claims processing systems designed to systematically underpay claims.

As Hunter testified, federal authorities have recommended eliminating or cutting back the antitrust exemption for health insurers and medical malpractice insurers on at least four different occasions after studying it. But Congress has never taken that step, presumably due to the power of the insurance industry lobby.

With the soaring cost of health care now in the spotlight, this may finally be the right time.

As reported by The Pop Tort one of the best consumer Blogs that I follow, the upcoming battle with Big Insurance should be entertaining:

Attention all doctors who complain about the cost of insurance rates! An important hearing is being held right now by the U.S. Senate Judiciary Committee that concerns two new bills that could ultimately eliminate your concerns in a heartbeat. The bills would repeal the anti-trust exemption under the McCarran-Ferguson Act, which makes insurance purveyors the only industry in America (other than Major League Baseball) exempt from federal anti-trust laws that prevent collusion and price-fixing.

The hearing, which is being carried live on the web at 10AM from the Dirksen Office Building (Rm 226), has been given the snappy title, “Prohibiting Price Fixing and Other Anticompetitive Conduct in the Health Insurance Industry,” and there’s an impressive line-up of witnesses, including Senate Majority leader Harry Reid (D-NV), and our friend and colleague, J. Robert Hunter, who is Director of Insurance of the Consumer Federation of America (CFA), former Commissioner of Insurance for the State of Texas, former Federal Insurance Administrator under Presidents Carter and Ford, and a co-author of several studies by the Americans for Insurance Reform (AIR), including the most recent one, True Risk: Medical Liability, Malpractice Insurance and Health Care.

If you are an American who loves the free-market system, do not sit by and let a company that is in charge of your health operate in a way that abuses your rights. Contact your local representative and tell them you support this bill.

Originally posted at InjuryBoard by Wayne Parsons

CPSC Chair Tenenbaum Seeks China's Help In Paying Chinese Drywall Claims in U.S.

Wayne Parsons — Fri, 16 Oct 2009 10:57:14 GMT

The story of ruined homes, hopes and dreams in the U.S. Southeast has been raging in the news for almost a year: Drywall From China Causes Concern Over Sulfur Odor In Homes - by Wayne Parsons January 02, 2009. The first question that comes to mind for an attorney like me is how do you get a company in China to pay for damage that their product causes in the U.S. Defective Product Accountability for Foreign Manufacturers by Joe Saunders.

So how does the first woman who contacted me about Chinese Drywall in her home in Florida get the money to fix her problem? She was a single mother with a little girl and a new home tha reeked of sulfur smells to the point it made them both physically ill. The builder of the home was gone and probably bankrupt. To solve the problem, all of the drywall in the home would have to be removed and replaced. Think about it. That removing and replacing all of the walls in the house is a huge _ and expensive _ task. Well lawyers across the Southeast are filing lawsuits for aggrieved homeowners, but collecting any money may be an entirely different matter. It would be great if the U.S. Chamber of Commerce would stop its lobbying for insurance company behemoths like AIG and start helping Americans who are hurt get justice. But then all the U.S. Chamber of Commerce cares about is keeping the executive bonuses rolling in to the insurance industry fat cats. To heck with a single mother and her daughter in ruined home in Florida. She's nobody to them.

Lucky for all of us, President Obama has appointed some consumer advocates to agencies like the Consumer Product Safety Commission. After 16 years of Presidents Clinton and Bush ordering consumer and environmental agencies to back off regulating commerce and protecting the environment, there are signs of life in federal agencies that protect American consumers.

The Wall Street Journal (10/16, A3, Trottman) reports that in an interview prior to her trip next week to China for a consumer product safety summit, Consumer Product Safety Commission Chairman Inez Tenenbaum said she intends to ask China to assist in paying for damage caused in US homes by defective Chinese drywall. Said Tenenbaum, "I will find out if any discussions are going on in China about the costs, are they prepared to participate in providing funds, and what would it take for that to occur." She also intends to discuss a US regulatory standard for drywall composition.

Fallon denies motion to shift discovery to the Hague. The New Orleans Times-Picayune (10/15, Mowbray) reported, "U.S. District Court Judge Eldon Fallon denied a motion Thursday by the German company Knauf Gips to conduct discovery in the Chinese drywall litigation under the rules of international litigation in the Hague. Plaintiffs and U.S. companies view the move as a sign that Fallon, the judge presiding over the national consolidated litigation over Chinese drywall in New Orleans, will fight to hold foreign manufacturers of Chinese drywall accountable."

The Bradenton (FL) Herald (10/16, Marsteller) reports that Fallon "said he will not dismiss several suits against Knauf Gips KG," a German drywall manufacturer "that says it has nothing to do with Chinese drywall." Knauf Gips "argued the suits against it should be dismissed, saying U.S. courts lack jurisdiction because the company is based in Germany and has no business dealings in the United States." But Fallon said that "the company's request would jeopardize plans to hold the first 'bellwether' trial in January."

ABC World News (10/15, story 10, 2:10, Gibson) reported, "A federal court in New Orleans held a hearing today about a growing problem for tens of thousands of American families. They have filed lawsuits alleging that drywall, made in China, is defective, ruining their homes and their health, and now some are finding their homeowners insurance is being canceled because of it." Desperate homeowners "are trying everything. Many are suing their builders and drywall manufacturers. And some have tried making insurance claims to get compensated, but insurance companies say their contracts clearly state they're not responsible for construction defects."

CBS /AP (10/15) reported, "Thousands of homeowners nationwide who bought new houses constructed from [Chinese drywall] are finding their hopes dashed, their lives in limbo. And officials warn that cases...in which insurers drop policies or send notices of non renewal based on the presence of the Chinese drywall will become rampant as insurance companies process the hundreds of claims in the pipeline." Because mortgage companies "require homeowners to insure their properties, they are then at risk of foreclosure, yet no law prevents the cancellations."

Nelson blasts move. Sarasota (FL) Herald Tribune (10/16, Kessler) reports, "U.S. Sen. Bill Nelson, D-Fla., lashed out at some of Florida's top insurance companies Thursday in response to several of them starting to drop coverage for homeowners who have tainted Chinese drywall." Nelson "fired off a number of letters to Florida companies," in one of which he "demanded that Bradley Meier, chief executive of Universal Property and Casualty Insurance Co. - one of the companies that has started dropping Chinese drywall victims - immediately provide 'a statement regarding your company's policy on claims and coverage relating to contaminated Chinese drywall.'"

Insurance reform is absolutely necessary in the U.S. as is now becoming apparant to all of us as the true facts of what is wrong with health care in America traces to the marble facades of the huge insurnace companies that dominate politics in Congress with their unlimited lobbying money.

Originally posted at InjuryBoard by Wayne Parsons

Do Private Health Insurance Practices Causes Decline In Health Care Quality?

Wayne Parsons — Sat, 10 Oct 2009 11:08:11 GMT

Science Daily reports on 09 October 2009 that "[t]he cost and quality of health care, as well as access to care and health outcomes, continue to vary widely among states, according to the Commonwealth Fund Commission " The Commonwealth Fund Commission is a private foundation working toward a high performance health system. This is it's second rating of the various states. In their report "Aiming Higher: Results from a State Scorecard on Health System Performance, 2009".

Leading states in the 2007 report still lead, disparities are great and the gap is widening. That means the quality of your health care depends on where you live in the United States. That's why we need national health care and a public option. I suspect that the driving factor in this is the insurance company denials of paying for quality and necessary treatment and tests. It isn't that we have too much health care in the form of rampant defensive medicine. Its that some adjuster at a big insurance company is denying a lot of patients and their doctors necessary treatment. This rationing of medical care by private health insurance companies is making America sick. The report confirms my support for a single payer public plan for health insurance, AND reform of insurance law and strict regulation of private insurance companies.

Since the beginning of the decade, insurance coverage in most states has been eroding for adults while increasing or holding steady for children. This divergence reflects the impact of federal action to expand coverage for children through the Children's Health Insurance Program (CHIP); rates of uninsured children in 2008 were the lowest since 1987. Nevertheless, high and rising rates of uninsured adults in many states underscore the need for comprehensive national reform to expand coverage in all states, and to further the gains made in Massachusetts, Vermont, and other states that have taken a lead in enacting reforms.

Private health insurance in the United States has failed. While the insurance industry is hugely profitable, the doctors are not being fairly reimbursed for treatments and the CFO's of the insurance companies are directing widespread denials of treatment to patients. Who are these insurance executives anyway? They aren't doctors so why can they make treatment decisions? It isn't defensive medicine that is a problem, its the money hungry insurance executives that are hurting people. Maybe they could use a good dose of lawsuit abuse.

While health insurance coverage for adults declined in a majority of states, the only improvements occurred when government support was implemented such as in health coverage for children. The Children's Health Insurance Program (CHIP).

A new bill signed into law by President Obama makes millions of children eligible to receive health insurance.

If your kids do not have health insurance, they are likely to be eligible, even if you are working and even if you have applied in the past and been turned down.

Your state (and every state) has its own program, with its own eligibility rules, but in many states, uninsured children 18 years old and younger, whose families earn up to $44,500 a year (for a family of four) are eligible for free or low-cost health insurance that pays for

Doctor visits, Dental care, Prescription medicines, Hospitalizations and much more.

Find out if your child qualifies.
Go to Your State's Program or make a free call to 1-877-KIDS-NOW.

Looking at overall health care in 2009, Vermont, Hawaii, Iowa, Minnesota, Maine, and New Hampshire lead the nation and these states set new standards on most indicators. Conversely, low states have declined in most areas.

"Leading states have raised the bar for better access, quality of care, and reducing disparities," said Commonwealth Fund Senior Vice President and study co-author Cathy Schoen. "Where you live in the U.S. matters in terms of your health care, and it shouldn't. These wide and persistent gaps among states highlight the need for national reforms and federal action to support states. National leadership has been critical for children– particularly for states with historically high rates of children uninsured— so we know that strong national efforts can make a real difference even in struggling states."

The sharp variation across states spans access, quality of care, costs, and lives. For example, rates of hospital readmissions (within 30 days of a previous hospital stay) among Medicare beneficiaries ranged from a high of 23 percent of hospital admissions in Nevada to a low of 13 percent in Oregon. The percent of adult diabetics getting recommended preventive care ranged from a low of 33 percent in Mississippi to a high of 67 percent in Minnesota as of 2006-07, a new high. On these and other measures, the lowest ranked states would have to improve 40 percent to 100 percent on average to achieve the performance of top ranking states.

Here's what would happen if the low states caught up:

Twenty-nine million more people would have health insurance—cutting the number of uninsured by more than half;

Nearly 78,000 fewer adults and children would die prematurely every year from conditions that could have been prevented with timely and effective health care;

Nine million more adults age 50 and older would receive recommended preventive care, and almost 800,000 more children would receive key vaccinations;

Five billion dollars could be saved annually by avoiding preventable hospital admissions and readmissions for vulnerable elderly and disabled residents.

It isn't all bad news. Most states improved in treatment for heart attack, heart failure, pneumonia, and prevention of surgical complications. And the lowest states have improved in some areas to what the average was in 2007. In addition, most states improved significantly in the quality of care in nursing homes (reductions in pressure sores, pain, and use of restraints) following a national effort to make that data publicly available. Wouldn't it be nice if the reason was that doctors and nurses made this improvement on their own? Why does it only happen when the poor quality is exposed to public view. lawsuits and news stories are the only tools that force change. That's why tort reform has no place in health care reform.

"The differences we see among the states translate to real lives and dollars," said Commonwealth Fund President Karen Davis. "If we can enact health reforms that give all states the opportunity to do as well as the best states we will save lives, improve quality, and cut costs. And, the good news is that these aren't pie in the sky goals—we know they are attainable because we see it happening in the states at the top of the pack."

Here are the declines in health insurance coverage from the private sector:

In 1999-2000 there were only two states with 23 percent or more of adults uninsured, by 2007-2008 there were nine. In 1999-2000, 22 states had less than 14 percent of adults uninsured; by 2007-2008 the number dropped to only 11 states. Children fared much better—due in large part to the CHIP program. The number of states with 16 percent or more of children uninsured dropped from nine to three between 1999-2000 and 2007-2008.

Gaps in coverage between states were particularly stark, with 32 percent of working-age adults uninsured in Texas compared to only 7 percent in Massachusetts as of 2007-2008. Several states stood out in terms of health insurance coverage expansions, as part of comprehensive reforms. Massachusetts, which had only begun to implement its universal health insurance program during the period covered by the State Scorecard, had the greatest increase in coverage for adults and gains in coverage for children. The reforms passed by Vermont in 2006 to cover the uninsured and establish a "blueprint for health" focused on preventing and controlling chronic disease are providing a new model for other states. And, Minnesota has achieved high rates of adult coverage and better preventive care through public–private collaboration.

The 2009 state scorecard includes 38 indicators grouped into five dimensions of performance—access, prevention/treatment quality, avoidable hospital use and costs, equity, and healthy lives. The analysis ranks states on each indicator and then averages the indicator ranks to determine the dimension rank. Dimension scores determine the overall rank. Equity measures the gaps in performance between vulnerable groups and the national average.

The Commonwealth Fund is a private foundation supporting independent research on health policy reform and a high performance health system.

Hawaii health care is at the top of this review and is an example of how to do things right. A separate report gives details of 7 top states and why they rank at the top: "Aiming Higher for Health System Performance: A Profile of Seven States That Perform Well on The Commonwealth Fund's 2009 State Scorecard".

Hawaii: An Early Quest for Coverage

Hawaii has one of the healthiest populations in the nation, as measured by the Commonwealth Fund’s
State Scorecard on Health System Performance, 2009 (Table 5). Compared with most states, fewer people in Hawaii smoke and are overweight or obese, and more people are engaged in regular physical activity, which is not a surprise given the state’s natural beauty and diverse geography. However, Hawaii also has its share of health-related challenges. For example, Hawaii has the highest incidence of breast cancer of all 50 states, but it also has the lowest death rates for breast cancer. How is that possible? Hawaii’s residents have excellent access to primary and preventive care, say the states health experts, and that reduces preventable mortality and enables early identification and management of chronic disease.

Hawaii also has had mandatory health insurance for all employees since 1974 and that system is singularly distinguishable across the country. If you wonder how our little states can afford this, it actually saves money because with everyone in the system the numbers make the insurance side of the system more efficient just like national health insurance reform would do in a single payer public plan.

Originally posted at InjuryBoard by Wayne Parsons

Study Links Post-Op Deaths to Hospital Response

Wayne Parsons — Fri, 09 Oct 2009 05:46:35 GMT

Would you go to a hospital if you saw that it had more surgical complications than average? Complications are bad _ right? Maybe you should re-think that decision.

A new study shows that the number of surgical complications is not as important as whether the Post-Op care is responsive to complications.

In a New York Times report, 84,730 patients who underwent surgery at 186 hospitals were analyzed:

The rate of deaths at the hospitals varied from 3.5 percent to 6.9 percent. But between hospitals with high and low death rates, there was only a slight difference in the number of complications, suggesting that the significant difference was in how the complications were handled.

The study appears in the New England Journal of Medicine.

The researchers reported that:

“A lot of current policies are focused on minimizing complications, and that’s helpful,” Dr. Ghaferi said, but added, “It really behooves us to look at what hospitals are doing once they encounter a complication with a patient in a post surgical setting.”

Look for a good hospital and look at their level of staffing. Many injuries suffered by surgical patients are not malpractice. They are unavoidable medical errors. At an understaffed hospital that does have the staffing or expertise to respond to post surgical situations is the patient's greatest risk. Read anything by Martine Ehrenclou and you will learn how to protect yourself or a loved one from injury or death.

See: America's Best Hospitals Rankings and Honor Roll 2009

Originally posted at InjuryBoard by Wayne Parsons

What Do You Need To Know About Testifying?

Wayne Parsons — Sun, 04 Oct 2009 03:44:04 GMT

If you bring a claim for personal injury you will have to answer questions. The one thing your attorney can't do for you in your case is testify for you. At some point the client has to testify. Listening to my clients answer questions in my office, in depositions and at trial, I have learned the mistakes that people make when answering questions.

As you have seen in the other articles in this series, the questions come from the police, sometimes the other party at the scene of the accident, ambulance drivers, doctors, nurses, physical therapists, your attorney and her or his staff, insurance adjusters, the attorney for the other side and even the Judge. To get a good context for the various situations where you will have answer questions, I have listed links to the other articles in the series so you can see how and when these situations will arise.

What you need to know to answer any question in any situation is basically the same. The rules and suggestions that I make here apply to all situations. Before answering a question, even from your own attorney, think about the following suggestions.

You should only say what you know. And when you say what you know it is important that you explain how you got the knowledge. That's it. I could quit now and you should be fine as long as you follow those two steps. Of course it is more complicated than that I will walk you through the exact steps and thought processes that you should follow.

Let's start with an example.

Assume that you were in your car with two passengers, one in the right rear passenger seat, when a car on a cross street ran a red light and T-boned your car on the passenger side on the rear quarter panel. You did not see the car because your attention was focused forward.

Your rear passenger saw the car coming and saw the drivers face looking back into his back seat just before the collision, then looking forward and screaming at the cars collided. You saw him turning his wheel as if he wanted to swerve his car but it was too late.

In my first interview with you I ask you about the collision. You tell the story by reciting the facts that you got from your friend who saw the collision. You tell me:

I was driving at the speed limit and going through the intersection with the green light when a car came through the red light from my right and hit my car at 90 degrees on the rear quarter panel. The other driver was looking into the back seat as he ran the red light. He spun his head around just before impact, tried to swerve his car by turning the wheel but it was too late and we collided.

You get a D+ for this answer. We have a lot of work to do.

First, let me give you the rules of answering questions:

1. Listen to the question. Then stop. What I mean is don't start talking yet. Slow done.

2. Ask yourself: "What do I know about this question. Then stop.

3. You know:

what you see.

what you hear.

what you feel - touch and emotion.

what you think.

4. Stop and gather your thoughts.

5. Answer the question.

You didn't see the other driver or even the car before the collision. So what do you know about what the other driver was doing just before the collision? No, the answer isn't "I know nothing because I couldn't see the driver. You know that after the collision you spoke with your friend and he told you what he saw. What you don't know is whether his account was accurate. So just state what you know. Here's a good answer to the question:

We were headed north and I was going 30 mph. I don't recall when I looked at the speedometer but I normally look at the speedometer often to make sure I'm not speeding. I got ticketed for speeding when I was a kid and my parents busted me. I never speed!

As I approached the intersection I saw the light for my street change from red to green about 100 yards (you went back and took a look at the intersection and drove through a few times to make sure your recollection was correct). I heard no one in my car talking.

As I drove through the intersection. I saw no cars at the intersection. I was about to pass over the crosswalk on the other side when I heard a scream from the back seat of my car and, at about the same time, I heard a short screech of tires from the right rear. Then I felt a huge jolt from the right, felt my neck light up like a very intense shock wave slamming into my body. The cars spun and stopped. I checked my passengers and they said that they were okay.

While we waited for the police and ambulance, my passengers and I talked. The rear seat passenger told me that he saw the collision, saw the other driver looking into the backseat of his car just before the impact, etc. etc. He told me ......

We all talk to fast and think too little when answering questions on serious subjects, Your case is a serious subject.

The major mistake that most witnesses make is not taking the time and using the energy to add in the details about where they got the information about what happened. Adding in "i did not see it" or "my friend told me" is unbelievably important. Why? Because maybe the friend got it wrong. If that happens, and it does, you won't go down because your friend got it wrong. Your testimony is the "I didn't see ......, but my friend told me ..... ."

Always attribute your statements to where you got them

The key to answering questions is to be honest and make sure _ up front _ that the listener knows where you got the information. Remember that you are just a witness and that integrity of the civil justice system demands accurate and truthful answers to all questions. To be accurate, you must focus on what you know.

Its okay to say "I don't know" and most attorneys will advise their clients to phrase that answer as "I don't recall at this time."

This works with spouses and kids and even that conversation with yourself. Be honest. Think about what you know.

For background on all of the things a person needs to know about bringing a case for personal injury read the other articles in this series of tips and practical suggestions about what happens ina real case:

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 - 3:59 AM EST.

What would a caveman bring to meet with the lawyer?, Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics, Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You've Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant | September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons | 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

What To Do After An Accident When The Adjuster Has A Tape Recorder, Mike Bryant , September 23, 2009 10:01 PM

Do I have a good or a bad case?, Devon Glass, September 24, 2009

What are interrogatories and how do I answer them?, Steve Lombardi, September 29, 2009

Interrogatories: A Written Deposition , Devon Glass, September 30, 2009

How Do You Value Your Case? Mike Bryant October 03, 2009 9:29 AM

These articles will prepare anyone for what lies ahead when they are injured or a family member or friend is killed and a claim is being being brought for money damages. Now its your turn to ask questions!

Originally posted at InjuryBoard by Wayne Parsons

Defensive Medicine Health Care Case Study

Wayne Parsons — Sat, 03 Oct 2009 14:51:50 GMT

Does your doctor perform a lot of unnecessary tests when you go for a visit? Not mine. The typical situation is when I ask about getting tested for something that I saw on TV or read about and my doctor telling me that he doubts that my health insurer will pay for it. So I don't get the test despite the fact that I had information saying that people should be checked out for the condition. Sound familiar? I'll bet it does.

Let's look at a real case: Gustavo Espinal-Santos.

Gustavo died on January 1, 2004, after contracting blastomycosis, a fungal infection often transmitted through water or soil.

Gustavo went to the doctor at the Bellin Family Medical Center in Bonduel, Wisconsin in December 2003 complaining of illness and was seen by "physician assistants" (PA's) who concluded that Gustavo had pneumonia. The PA's failed to take x-rays or other basic tests that would have shown that the condition wasn't pneumonia and that Gusatvo actually had blastomycosis. It sure doesn't look like the folks at Bellin family Medical Center are wasting a lot of money and time - and driving up our health care costs - by practicing defensive medicine. Am I missing something?

And while we are looking at the poor harassed medical profession, can someone explain to me how tort reform would have saved Gustavo Espinal-Santos. I am sure that the insurance industry and the doctors who want to take away the rights of folks like Gustavo, after taking his life by not doing standard medical tests, can explain how eliminating patients' rights would have saved Gustavo. And of course if we can stop Gustavo's family from suing this health care provider I am sure that others like him will be saved in the future.

The death of Gustavo Espinal-Santos is exactly what I meant when I wrote the article last week: Tort Reform Has No Place In Health Care Reform By Wayne Parsons September 17, 2009 2:53 PM

Richard Ryman of the Green Bay Press Gazette reported on October 2, 2009 that a jury decided that the PA's at Bellin should have done more tests and found them guilty of being negligent. Should we feel sorry for the PAs or for Bellin? Is this case an outrage? Is it lawsuit abuse? Jackpot justice? What do you think? Here are the facts as reported by Richard Ryman.

Espinal-Santos wen to Bellin twice. He was admitted to St. Vincent Hospital on Dec. 23, 2003, and diagnosed with blastomycosis, but it was too late to save his life. The jury decided that
Bellin Health System and Dr. Peri Aldrich, who was responsible for overseeing the physician assistants, were negligent.

The jury verdict of $3.7 million will be reduced because of caps on damages in cases against doctors in Wisconsin. That means that Gustavo Espinal-Santos’ survivors including his wife, Maria Zavala McDaniel, and daughters Maria Espinal-Zavala, 10, and Anna Sophia Espinal, 5 will not receive what they are entitled to and the medical malpractice insurance company will have more money in their bank account. Is that what really matters: keeping the money in the bank accounts of insurance companies and going easy on sloppy medical practices that take away Maria's and Anna's father forever?

The good folks at Bellin Health issued a statement Friday on the verdict.

"Foremost, Bellin Health wishes to express our empathy to the Santos family. It is difficult any time you lose a family member. Bellin Health is obviously disappointed with the verdict and believes the care provided was appropriate and followed established medical protocols. We are now determining what, if any, other action will be taken in this matter. Out of respect for the privacy of the family, we will have no further public comment.”

The Wisconsin legislature deiced to take care of doctors who kill people with avoidable medical errors rather than the family of Gustavo Espinal-Santos.

Defensive medicine? What we need is for patients to be more defensive to protect themselves from doctors who don't do enough - or the right - tests. Because once you are dead their will not be an adequate remedy in the courts in Wisconsin. They want to do this in Hawaii. I hope our legislators know better than to fall for caps on damages in medical malpractice cases.

Take a look at this article debunking the defensive medicine myth:

Debunking the Myth on Defensive Medicine - By Cecelia Prewett June 16, 2009 12:30 PM

Does anyone out there actually think that doctors are practicing defensive medicine and ordering too many tests? Remember that the private health insurers won't even pay for necessary tests. This whole issue is another myth from the insurance industry. What we need is to remove the anti-trust exemption from insurance companies. Stay tuned because I am going to write on that subject next.

Originally posted at InjuryBoard by Wayne Parsons

Obama Will Not Support Caps On Damages When A Doctor Or Hospital Negligently Injures A Patient

Wayne Parsons — Tue, 15 Sep 2009 15:11:02 GMT

Everyone knows that medical malpractice limitations supported by the insurance industry and doctors won't affect health insurance premiums at all. The California legislature passed a cap on damages when a doctor or hospital negligently injures a patient over 20 years ago (MICRA) and today the insurance company MIEC charges more for malpractice insurance to California doctors than it charges to Hawaii doctors. Hawaii has no caps on malpractice damages for avoidable medical errors. Texas also caved in to the lobbying pressure of doctors and insurance companies and they are now seeing that this bailout of insurance companies has no benefit to the health care system and only leaves housewives and children who are injured by avoidable medical errors to suffer without compensation while insurance executives and doctors sip champagne and stay in $1,500 hotel rooms with their undeserved spoils.

Obama says that he will not support any caps on damages for those are injured by negligent doctors. This is a huge victory for women and children who are most often punished by caps on damages and, I might say, it is a victory for both truth and common sense.

Good reading on the failure of tort reform in Texas to produce any of the results promised by doctors and insurance companies - and in fact to make things worse - is found in an article written by Mike Ferrara from Cherry Hill, NJ:

Texas Tort Reform is NOT a Model for Nationwide Health Care Reform by Mike Ferrara | September 07, 2009 8:24 PM

Another good article is: Obama's Medical Malpractice Solution by Jane Akre | September 11, 2009 7:24 PM

In the "Political Hotsheet" Blog at CBS News (9/14), Stephanie Condon wrote, "In his speech before Congress last week, President Obama attempted to win Republican support for his health care overhaul by agreeing to consider including medical malpractice reform in his plan. In an interview that aired on CBS' '60 Minutes' on Sunday the president shed some more light on what he meant -- and in which form he will not accept tort reform." Obama "clarified that he is so far not willing to consider capping malpractice judgments, a reform proposal consistently put forward by Republicans."

Fox News' Special Report reported that President Obama "is suggesting that something very important to his political opponents, malpractice law reform, might be on the table. ... The President favors some dry runs first, which Republicans say are unnecessary." Texas and California "have already taken action at the state level and it worked." Rep. Lamar Smith: "Texas passed tort reform in 2003, and premiums went down 30%. California passed tort reform and premiums went down 40%." According to Fox, "Tort reform...does not limit compensation for actual damages or loss of income, but often puts a cap of $250,000 on what are called non-economic damages, punitive payments lawyers seek for pain and suffering. ... President Obama concedes defensive medicine is a problem but said last night he does not support limits on liability. Instead, officials are looking at a certificate of merit program in which a panel of experts decides whether a case has merit before it goes to the court. Interesting idea, but a disappointment to those who thought the President had seen the light on liability reform."

My articles also are worth referring to for Hawaii residents. In Hawaii there are almost no medical malpractice cases filed and we have no tort reform. Last year less than 30 cases were filed against doctors in Hawaii. Still the doctors and insurance companies complain and seek legislative changes like those in Texas and California. Its all shibai as is the outlandish editorial in the Honolulu Star Bulletin on Monday, September 14, 2009. I wonder what kind of cool aide the folks at the Star Bulletin are drinking. They should be doing some serious reading. They can start with my article "The History Of Tort Reform - A Story of Corporate Greed And A Conspiracy Against Justice For The People", May 2, 2009 and also read THE CALA FILES: THE SECRET CAMPAIGN BY BIG TOBACCO AND OTHER MAJOR INDUSTRIES TO TAKE AWAY YOUR RIGHTS - By Carl Deal and Joanne Doroshow

The Washington Times (9/15) editorializes, "Reformers in both parties want to curb abusive lawsuits that drive medical costs through the roof. Yet Mr. Obama could not even bring himself to say that any suits are abusive, but merely that doctors are for some reason practicing "defensive medicine [that] may be contributing to unnecessary costs." To help pacify them, the best he could offer was to 'direct' Secretary of Health and Human Services Kathleen [Sebelius] to 'authorize demonstration projects in individual states to test these issues.' This is a mere placebo." But "as part of permanent federal law rather than a vague presidential directive, [such projects] could help improve affordable health care delivery without subjecting the nation's entire health care system to major and dangerous surgery."

The St. Louis Post-Dispatch (9/14) editorialized, "Plenty of reasons exist to support medical malpractice reform. Doing it to slow the dizzying growth in health care spending isn't among them." "Few economists believe tort reform by itself - even the most radical tort reform - would significantly reduce what Americans spend on health care. Most experts say the big reasons for high U.S. health spending are chronic illness, expensive new medical technology and an aging population. Lawsuits are far down the list."

The Jackson (TN) Sun (9/14) editorialized, "When it comes to reforming health care in America, there should be no sacred cows that [are not] subject to review and reform. It makes sense for Obama to put malpractice reform on the table for review. This has been a long-standing thorn in the side of conservatives, and they are right to demand it be reviewed and changed if their case can be made."

So where is the Honolulu Star Bulletin in terms of the facts? Do they care? Maybe in the past they felt that you can always put down lawyers and lawsuits because the public is brainwashed on the subject but those days are no more. The truth is out and the public is beginning to see that closing the courthouse doors to legitimate claims by seriously injured women and children is the work of the rich and powerful against the people. Doctors and insurance companies.

As my friend Steve Lombardi writes in his Des Moines, Iowa Injury Board Blog:

We've been covering Interstate travel safety for the past two-weeks on the Injuryboard and a few of my fellow members have jawed about it nonstop. I know that Wayne Parsons, my friend Devon Glass from Michigan, Mike Bryant from Minnesota, Pierce Egerton from North Carolina and Rick Shapiro from Virginia will all join in with my sentiments about being frustrated. Parents frustrate us when they talk all about tort reform and then turn a blind eye to what their children do. Tort reform isn't about the other guy, it's about us and the decisions we make. Tort reform is actually a distraction from the root cause of injuries and accidents. Taking away the rights of people to receive compensation isn't going to stop the accidents that cause injury and death. All tort reform will do is make those injured or the families of those killed miserable. So stop distracting everyone with taking away the right to receive compensation and ignoring the root causes of injury and death on the highways of America.

Well said, Mr. Lombardi!

Originally posted at InjuryBoard by Wayne Parsons

Is Obama Caving In To Insurance Companies on Tort Reforn In Health Care Negotiation?

Wayne Parsons — Mon, 14 Sep 2009 15:36:53 GMT

The AP (9/14) reports, "President Barack Obama began a week that will dwell heavily on overhauling the health care system, declaring himself confident Congress will pass 'a good health care bill' even though some Republican opponents were trying to kill the measure for political gain." In his Wednesday speech and again in an interview broadcast Sunday on CBS' "60 Minutes," the President "signaled he was open to so-called tort reform. Under current practice, doctors and hospitals must pay huge amounts to insure themselves against malpractice lawsuits by patients seeking large court-ordered settlements for poor treatment." Reuters (9/13, Bohan) noted that in the "60 Minutes" interview, Obama remained skeptical about medical malpractice caps.

Public increasingly backing malpractice caps. The Washington Post (9/14, Cohen, Balz) reports, "President Obama continues to face significant public resistance to his drive to initiate far-reaching changes to the country's health-care system...to a new Washington Post-ABC News poll," but opposition "has eased somewhat." The poll also found that "GOP insistence on placing new limits on medical malpractice lawsuits finds significant public backing: Nearly two-thirds support caps on the amount of money that can be collected as a result of medical errors, with support increasing since June."

Cost of malpractice awards questioned. McClatchy (9/13, Margolies) reported, "Despite the perception that 'jackpot justice' has fueled soaring costs, hard data yield a different picture." In fact, "it's not clear that malpractice awards have risen anywhere near as dramatically as tort-reform proponents insist. Nor is it clear that jackpot justice, as opposed to declines in insurers' investment income, is to blame for rising malpractice premiums." Tom Baker, "a law professor at the University of Pennsylvania and author of The Medical Malpractice Myth, theorized that having 'a common enemy' - trial lawyers - keeps insurance and pharmaceutical companies - the real culprits behind rising costs, he said - from fighting among themselves."

Republicans "underwhelmed" by promise of demonstration projects. The Salt Lake Tribune (9/13, Canham) reported, "While they appreciated the mention, which was met with hearty applause, many Republicans in Washington were underwhelmed by his promise of 'demonstration projects.' The president has authorized the Health and Human Services Department to set up a grant program for states that would focus on ways to reduce costs stemming from patients' lawsuits against medical professionals. But these projects would fall far short of the Republican goal to place a federal cap on damages for pain and suffering."

Commentary backs pilot programs. The Boston Globe (9/13) editorializes, "President Obama was on target in his speech to Congress Wednesday when he called for pilot projects to reform medical malpractice." But "simply capping malpractice awards is not a panacea in reducing health costs." The Obama administration "should give priority to malpractice reform pilot programs that make dispute resolution part of the health delivery system."

In a blog at The Atlantic (9/13), Philip Howard wrote, "A range of malpractice reform proposals will probably be considered over the next few weeks, and it's probably useful to catalog them, and identify the advantages of each. All of these reforms have significant merit, but special health courts are by far the most important in reducing defensive medicine. Each of the reforms can be combined with others, and it would be preferable to combine the best features of each." Howard summarizes some possible proposals.

With 200,000 Americans dying each year due to preventable medical errors and medical malpractice lawsuits shrinking to low levels, it is shocking to see the President selling out the sick and injured. See my earlier story on this subject:

Tort Reform Myth: The Legal System Causes High Malpractice Insurance Premiums

Twelve Tips To Prevent Avoidable, Fatal Medical Errors and Infections in Hospitals

by Wayne Parsons | September 02, 2009 3:47 AM

Originally posted at InjuryBoard by Wayne Parsons

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers

Wayne Parsons — Mon, 14 Sep 2009 03:59:27 GMT

Your car is now stopped and you are sitting inside, shocked and hurt, after a collision on the highway. What do you do? What do you need to know? What do you say? Okay, stay calm and take a deep breath and call 911.

What you should do when you are in an automobile accident varies from state to state but there are some basic things that apply everywhere. Below are 10 steps that will help you get through the events at the scene of the crash and the few days following your injury.

At the outset, you can find an attorney to talk to on the telephone where you live by doing a Google or Yahoo Search using the terms: Injury Board Honolulu. If you live in another town in another state just put the name of your town or state in place of Honolulu in my example. That is the best way to get nearly instant legal advice.

The following are some suggestions that have uniform applicability to all automobile accident cases in the United States. If you have insights or corrections I want to know. A group of attorneys across the country have pooled our experience to answer the questions that our clients ask. As the shock of the collision sets in, what should the people involved do? Or not do?

Step #1: Help the Injured. Make sure everyone in your car is okay, call 911. Make sure everyone in the other vehicle is okay. Note the time.

Step #2: Don't apologize. There is a tendency of many people to apologize. There is plenty of time to apologize later. At the scene of the collision focus on injuries and safety and leave who was at fault for later.

Step #3: Exchange Information. Get the name, address, insurance company name and policy number of the other driver(s). Write down the license plate number of all involved vehicles.

Step#4: Witnesses. Check the area to see if there are bystanders who may have seen the incident. Point them out to the police and, if you are able to do so, ask them if they saw the crash and if they did get their contact information. Name, address and telephone number. The police often miss witnesses at the scene.

Step #5: Take Photographs of the cars and the scene. A picture is worth a thousand words and it can sometimes be important to have photographs of what the scene looks like if a dispute arises later about what happened. Photographs of any injuries that can be photographed also is a good thing to do.

Step # 6: Cooperate With the Police. This goes without saying.

Step # 7: Be Careful What You Say About Your Injuries. When you talk to the police on medical personnel at the accident scene, make sure that you know what you are saying in general and specifically about injuries. You may feel lucky to be alive and so when the police officer asks how you feel or "are you injured?" you may say "I feel fine!" or "I'm okay, despite being banged up. Later on you may find out that you have a herniated disk in your neck that you weren't aware of immediately after the collision. The excitement, relief and adrenalin of a car collision can produce a lot of things that mask your injuries. The aches and pains can come on stronger later in the day or even after a week. Don't prejudice your injury situation by blurting out "I'm okay" at the scene. The other driver's insurance company will never let you forget it. It is also important to let the police and the medical personnel what hurts. Particularly let them know if you hit your head as you may have a closed head injury that has caused blood to be leaking into your skull and that can kill you even though you may be able to walk and talk right after the incident. You may not even have much of a headache at first. As the bleeding progresses and the pressure in the skull increases, a severe headache will come on quickly and death from crushing of the brain happens quickly. It can hours, days or even weeks. If you hit your head and were unconscious or dazed, report this to the police and the medical people. Insist up on a CT scan to see if an internal bleed exists. You can read more on this subject at: Billy May and TBI: Another Closed Head Injury Death?; or, at Misdiagnosis of Brain Injury - Its Not Just a Headache - Remembering Natasha Richardson Wayne Parsons | May 03, 2009 2:20 PM

Step # 8:Tell the nurses and doctors everything. This is not a time to leave anything out. Think about what hurts and how you feel. Write it down and hand it to the nurse. Read it to the doctor. Notice odd feelings that just don't feel right. If you don't report an area of injury for a few days they can accuse you of making it up of they can suggest that maybe you hurt it somewhere else. Most injuries heal and the problem goes away during the 6 month period after an auto accident. But some get worse over that period of time even though they started off relatively small. This obviously doesn't apply to a fractured femur or broken arm.

Step # 9: Call your insurance agent. Your automobile insurance policy requires you to inform the company if you are in an automobile accident. That means calling the agent who sold you the insurance. The agent will ask you to make a statement. If you are hurt and if you may want to file a claim in the future, you should think twice about making a statement without getting legal advice first. An Injury Board attorney will help you with this at no cost to you if you retain them to investigate your case. The agent will want to tape record you over the telephone. Note that I am talking about "your" insurance company. So you ask why not make a statement to "your" insurance company. First of all that statement can be obtained by the other driver's insurance company if you make an injury claim. Any mistake you make in your statement can be used against you later. In addition, if you have an Uninsured or Underinsured Motorist claim, you will bring that against your own insurance company and they can do the same thing: use an innocent mistake in this initial statement against you. In the interview the insurance agent usually phrases questions in ways that lead you to minimize your injuries. That is the most common problem we face with these early statements. When I am involved at this early stage of a car crash case, I deal with the insurance agent, get the company the information they need and hold off on tape recorded or written statements from my client until an appropriate time. Remember, I said that you have to notify your insurance company about the accident but that doesn't mean that they can make you do anything they want you to do.

Step #10: Fill Out Any Forms Carefully. Your automobile insurance company is probably going to pay your medical bills even though the other driver was at fault. If you look on the Declaration Page of your automobile insurance policy you will see a line item for Personal Injury Protection or PIP. PIP pays the medical bills and sometimes wage loss. The amount available is whatever you bought. Unfortunately most insurance sales people their clients to buy the minimum if you have health insurance. That is always bad advice. Buy as much PIP as possible and add in coverage for as much wage loss as possible. It may take a long time to get the other driver's insurance to pay anything - years! And a lot of drivers have no insurance on their cars even though it a law violation to drive without insurance in some states like Hawaii. Your insurance company won't pay your medical bills unless and until you fill out an application for PIP benefits. The form is usually two pages long and is mostly innocent questions about the incident. There is usually a small box to "describe the accident" and another to "describe any injuries". This is where the trouble arises and where you really should have an attorney help you fill that part in. If you do it alone don't say much. Regarding injuries just refer to the doctors and hospital and tell them to get the information from the medical facilities. An excellent article on automobile insurance can be found at: Uninsured Drivers On The Highways: Cause of Higher Rates of Injuries & Deaths? By Rick Shapiro a top attorney from Virginia. Here is a Declaration Page or Dec Page:

Note that uninsured motorist protection cost this driver $21.95 to get $500,000 of protection if they are injured or killed, heaven forbid, by an uninsured driver. We have 140,000 of them in Hawaii. For $22 a family in Kaneohe or Wailuku or Des Moines is protected. Did your automobile insurance sales agent tell you to buy this coverage? If not I would like to hear why not!

The same applies to both PIP and underinsured coverages. The 140,000 uninsured drivers in the Islands are a small part of the people who buy the minimum insurance. Our legislature in Hawaii is in bed with the insurance companies. Hawaii has ridiculously low limits of coverage. Why? That saves All State and State Farm and AIG and Liberty Mutual a lot of money. Their premiums to drivers are the same and Hawaii lets them limit their exposure to $20,000. In most states it is $300,000. But Calvin Say and Governor Lingle don't care. So what if an automobile accident victim on Oahu can't work for the rest of his life. The insurance companies fill their campaign contributions and because they let the insurance companies reap big profits in Hawaii as they sell insurance policies that have low payout limits. This is really bad. Why aren't we hearing about this on major news outlets in Honolulu like KGMB, KITV, KHON and the Advertiser and Star Bulletin? Maybe its because they run prime big bucks advertising from All State, State Farm, AIG, Liberty Mutual and HEMIC. I know, quit being so cynical!

Well that takes you through the first phase of being in an automobile accident in Hawaii. There is much more and if you stay connected through Injury Board, a group of attorneys from across the country are combining on a series of articles about answers to the important questions that people have when they are injured and must deal with insurance companies, the police, doctors and the process of filing a claim. The series will cover the entire range of common issues that arise in a case from the scene of the accident to filing a lawsuit or arbitration and what happens after that.

Follow my Blog and the Injury Board Blogs from the following attorneys about what happens if you bring a claim in your automobile injury accident case. These law firms are dedicated to injury prevention, safety and protecting families. You may want to post a Google Alert for each of the following attorneys and get the entire series.

Michael Bryant of Bradshaw & Bryant PLLC in Waite Park, Minnesota,

David Mittleman and Devon Glass of Church Wyble, PC in Lansing, Michigan,

Pierce Egerton of Egerton & Associates P.A. in North Carolina

Steve Lombardi of The Lombardi Law Firm in Des Moines Iowa

Rick Shapiro of Shapiro, Cooper, Lewis & Appleton, P.C. from Virginia and North Carolina

The suggestions in this Blog are not intended to replace a consultation with an attorney, nor do they take into consideration the facts and law that applies to your particular situation. The attorneys who belong to the Injuryboard are available answer individual questions to help you with your case. Feel free to get the help you need by contacting one of us.

Originally posted at InjuryBoard by Wayne Parsons