Injuryboard Commentary - Hawaii

Emily Midgley Dies in Big Island Hay Ride on Halloween

Wayne Parsons — Mon, 02 Nov 2009 11:47:22 GMT

The Star Bulletin story "Halloween hay ride proves fatal to Big Isle girl, 7" reports that Emily Midgley of Hawaiian Ocean View Estates jumped off of a trailer at the end of a hay ride and was run over by the trailer.

The hay ride was a church event held on Halloween by the Evangelical Community Church.

At 7:08 p.m. Saturday, police said, a 48-year-old Hawaiian Ocean View Estates man was operating a 1998 Dodge pickup with a trailer hitched to the truck. A number of passengers including Midgley were on the hay ride.

As the truck was coming to a stop at the end of the hay ride in the parking lot of Ocean View Evangelical Community Church, Midgley jumped off the trailer and was run over, police said.

Midgley was taken to the Kona Community Hospital, where she was pronounced dead.

I have written about trailer incidents in the past and noted that few states have any laws or regulation affecting trailer safety or use of trailers. There is an organization that promotes safety and injury prevention of trailers named DangerousTrialers.org, that proposes laws and regulations that may prevent trailer injury or death. I support those efforts and will encourage Hawaii legislators to look into this subject when they convene in January 2010.

From the facts reported about the tragic death of little Emily Midgley it is not clear if any trailer safety issues were involved. Our thoughts and prayers go out to the family and friends of this little girl.

Originally posted at InjuryBoard by Wayne Parsons

Isn't Tort Reform Only About Frivolous Cases?

Wayne Parsons — Sun, 25 Oct 2009 14:08:03 GMT

If you listen to doctors complain that they need protection from lawsuit abuse and that the real problem in health care reform is defensive medicine and lawsuits driving up the cost of health care, you get the impression that this isn't about terrible medical care and real injuries. Well, what do you think about a doctor removing the wrong ovary? A Kansas doctor did that a law in Kansas says that a woman who sued the doctor for the horrible mistake can't recover more that $250,000 for that lost ovary. Let's have a show of hands ladies: how much is your left ovary worth? Now, how about the husbands?

Scott Rothschild of the Lawrence Journal has been covering this story and reports on an upcoming battle at the Kansas Supreme Court:

Seven years ago, Amy Miller, Eudora, went in for surgery for removal of her right ovary. Lawrence physician Dr. Carolyn Johnson removed Miller’s left ovary by mistake.

Miller sued, alleging medical malpractice. The dispute will land this week before the Kansas Supreme Court with arguments scheduled for Thursday.

The case has drawn some of the state’s biggest special interests, with doctors, insurers and businesses lined up against plaintiff’s attorneys, organized labor and other groups in a battle over whether it’s constitutional to place a legal limit on damages for pain and suffering.

In 2006, a Douglas County jury returned a verdict for Miller for $759,680.

That award included $250,000 for noneconomic losses; $150,000 for future noneconomic losses; $84,680 for medical expenses; $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse. Noneconomic losses are awarded for pain, suffering, disability, mental anguish and physical disfigurement.

But then-District Court Judge Steve Six knocked the award down, striking the $150,000 for future noneconomic losses because of a law that states noneconomic damages can’t go above $250,000. Six also struck down the $100,000 for future medical expenses.

Miller’s attorneys say the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional.

The cap usurps the jury’s role in calculating malpractice damages, infringes on the separate powers of the courts and hurts those with the worst injuries, argued Lawrence attorney William Skepnek.

Dr. Johnson admits the error:

It's not disputed that Johnson accidentally removed Miller's left ovary instead of the right one on Oct. 18, 2002, when Miller came in for surgery to relieve severe pain on the right side of her pelvis.

"I thought it was the right ovary. I don't have an explanation for how that happened. : I made a mistake," Johnson testified Thursday in Douglas County District Court.

The argument made by Miller's attorneys is that “Among the broad universe of all medical malpractice victims, the cap imposes special burdens only on those in greatest need of relief through the civil justice system.”

They call this a wrong site surgery case:

Such mistakes are common nationwide but underreported, according to a September article in the medical journal Archives of Surgery. The authors estimated there are from 1,200 to 2,700 surgeries per year that involve the wrong site on the body, wrong procedure or wrong patient.

"Despite a significant number of cases, reporting of (the cases) is virtually nonexistent, with reports in the lay press far more common than reports in the medical literature," an abstract of the article states. "Wrong-side/wrong-site, wrong-procedure, and wrong-patient adverse events, although rare, are more common than health care providers and patients appreciate."

The Kansas Chamber of Commerce puts the Miller case into its one-size-fits-all cap on damages that protects the doctors overly sensitive egos and saves billions for a boated out-of-control insurance insurance industry. In a choice between health and money, the AMA and the Chamber of Commerce and the doctors put money first and an ovary second. Someone has to sacrifice and women have been doing it for years so why not an ovary to put a few more dollars into pockets of doctors and their insurers:

“In these difficult and uncertain economic times, opponents of statutory limits to noneconomic damages are challenging one of the most important pieces of the tort reforms that fueled Kansas’ economic growth,” the chamber said in a written brief to the court.

Dr. Johnson claims that the jury was wrong because although Dr. Johnson was negligent in removing the wrong ovary, it would have had to be removed anyway in the future.

Steve Lombardi of Des Moines, Iowa has written a six-part series on the legal aspects of wrong site surgery cases: Part I - Wrong Site Surgeries - The Board of Medicine - The Surgeon

What do you think? Is your ovary worth only $250,000.

Originally posted at InjuryBoard by Wayne Parsons

FDA commissioner endorses legislation to improve food safety.

Wayne Parsons — Fri, 23 Oct 2009 15:35:47 GMT

The Los Angeles Times (10/23, Zajac) reports, "Food and Drug Administration Commissioner Margaret Hamburg on Thursday strongly endorsed legislation that would give her agency new tools to improve food safety, but she warned that Congress still must find a way to pay for them if consumers are to benefit." The proposed "changes would require significant additional manpower and costly new computer systems, Hamburg told the Senate Health, Education, Labor and Pensions Committee." Committee Chairman Tom Harkin (D-IA) "urged the FDA to come up with cost estimates quickly because, he said, he didn't want to pass a bill that would be undermined by inadequate funding."

The Wall Street Journal (10/23, A2, Zhang) reports that Hamburg said the bill needs to be stronger and give that agency more authority as well as funding, asking that the Senate's bill more closely resemble that one that passed the House in July.

Originally posted at InjuryBoard by Wayne Parsons

How Does An Injured Person Describe Their Injury To Doctors, Lawyers and Their Family?(2)

Wayne Parsons — Thu, 22 Oct 2009 03:45:54 GMT

After an injury the first thing a person hears is usually: "Are you hurt?" Describe your injury."

The other driver will often ask. The police officer at the scene. The ambulance drivers will ask. The nurse at the emergency room will write it down. The doctor. The first question from any attorney you call will be how badly you are hurt. Your wife or husband will ask as soon as you talk to them. The insurance adjuster after you notify your insurance company will want to know. The other driver's insurance adjuster will ask. Nothing about you is more important in a case that may end up as a claim and maybe be headed to court.

No question gets asked more often and by more people.

No question gets answered more poorly than this one. So lets take a look at the question and lay down some rules that will help.

As in my earlier article on What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons , 20 September 2009 where I tell you how to answer any question, I will give you here a detailed way to properly answer a question about your injury and your health.

1. Identify the place that hurts or is numb or is injured. For instance: "I notice something in my right lower back, next to the spin just above my belt." Or, I feel pain in the back of my head at the base of the skull."

2. Describe the sensation. For instance: "the pain is a dull ache that throbs and goes away and then comes back," or "my lower back is like knot of burning pain, like a huge muscle cramp in an area about 6-inches in diameter and it radiates into both buttocks and then goes down the right leg all of the way to my foot. The pain is burning and achy all at the same time. In the leg I feel like hot lava is running down to my foot through my leg". Be aware that pain can be "burning", "shooting", "aching", "numb", "stabbing", "dull", "like an electric shock" or "Sharp". You may find words that are better than the ones I am suggesting here.

3. Describe the duration. For instance, "I get this pain for about 15 minutes and then it lessens. It will come back 4 or 5 times a day. I have 4 or 5 periods of this pain each 24 hour day. In between I am uncomfortable and although I can feel the pain, it is at a 3 on a 10 point scale as opposed to an 8 on a scale of 10 when the pain is greatest." Think about a 24-hour period and take some notes about what you were doing and how your injury feels. This may be very helpful to your doctor and attorney. Then expand to a week and identify what days the injury was bothering you and how it affected you. Then take 3 months and then a year. You get the picture. Create a graphic pain history. You can use a calendar.

4. Think about Triggers. For instance, "I get the spasm in my back when I sit or stand for more than about 20 minutes. Also if I do anything strenuous like cleaning my apartment, it sets off a huge flare up of the pain. This is very important to your doctors and it should be important to you. The goal is to reduce your pain and suffering, so don't do things that makes it worse.

5. Don't guess. if you aren't sure about a question don't answer. Ask for more time or to have the question clarified. You can't do this forever so do your homework as i describe it here and get ready to answer properly.

6. Don't be a doctor. Nothing looks worse than a smart aleck patient using medical school terms. The doctor will explain the medical issues. All you need to to do is to describe how you feel.

7. Keep a list of areas that hurt or are numb. That will lessen the chances of you forgetting one and then the insurance company calling you a liar.

8. Defer to your doctors. They went to medical school. You didn't. When asked what your diagnosis is, tell the questioner that they should get that directly from the doctors and then proceed to tell them how it (you) feel.

9. Ask questions. This is a good time to find out the insurance company's attitude about you. Take notes.

10. Read the other articles in this series by serious Injury Board attorneys across the country:

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

Demystifying Injury Litigation for Clients: What Are Interrogatories?, Rick Shapiro ,October 3, 2009

Do only dishonest people refuse to give a recorded statement? Steve Lombardi | October 06, 2009 10:47 AM

These Injury Board affiliated attorneys have done a great service by collecting articles on the beginning phases of getting hurt and trying to find an attorney and dealing with doctors and insurance companies.

Originally posted at InjuryBoard by Wayne Parsons

The Jones Act in Hawaii: Ed Case and Jim O'Keefe Object to American Worker Requirments.

Wayne Parsons — Wed, 21 Oct 2009 06:42:34 GMT

Malia Zimmerman of The Hawaii Reporter reports on 20 October 2009 that a "Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly". Her story is about a bread maker in Hilo who claims that he had to pay $5.50 to ship a 50 lb. bag of flour to Hilo from the mainland and that the cost ruined his business.

Wait a minute, Malia!

I thought that the Jones Act was a law that allowed injured crew on ocean going vessels to get money for medical bills and wage loss (maintenance and cure), if they got injured, so they can get back to work!?

Here is what happened to O'Keefe & Sons Bread Bakers:

Big Island small business owner Jim O'Keefe operated the O’Keefe & Sons Bread Bakers in Hilo, Hawaii for 13 years before shutting down his extensive operation in 2008. His popular bakery closure left 50 people out of work, retail customers searching for other restaurants to buy deli and baked goods from, and several area businesses, grocery stores and resorts scrambling for other local places to buy wholesale baked foods.

O'Keefe claims that the cost of shipping made it impossible for him to stay in business. Those costs included shipping costs for flour and other food ingredients.

“I would buy a 50 pound bag of flour for $6 or $7 in the mainland, and by the time it landed in Hilo, it cost me $12.50 a bag,” O’Keefe says.

I have to tell you folks, I am not shocked by that shipping cost. Don't get me wrong. I am not an expert on making bread in a commercial enterprise, I'm just talking about $5.50 for 50 lbs.

The 2 oz. letter I just sent to Harriet (my sister) in Michigan for $0.42 seems to be more expensive per ounce than the flour that Mr. O'Keefe needs to make his bread. A 50 lb bag would cost $168 if the U.S. Postal Service carries it to Hilo and charges the same rate as for a letter. O'Keefe pays $5.50. And he is filing a lawsuit?

If regular people paid the equivalent rate of $5.50 for 50 pounds in shipping to Hawaii, a letter would cost 2 Cents in postage. That's right, a letter would cost $0.02, not $0.42 as it is today.

O’Keefe blames his business failure on the fact that the ships bringing the flour are required by the Jonhes Act to employee American workers. American crews get paid a living wage for America. I am very interested in what Hawaii working folks - who bought Mr O'Keefe's bread, think about his suggestion that we should not protect Hawaii and U.S. workers. He says that the cost of goods are ridiculously high in Hawaii because of the Jones Act and that stems from using an American work force on the ships.

The Jones Act is not about bread or bakers. It protects American workers. The Jones Act is a federal law that says all products shipped between American ports must be shipped in American made vessels by a crew that is 75 percent American. The law supports the high quality American work force. Wouldn't O'Keefe's lawsuit result in cheap labor from foreign countries taking over many of our industries and thowing our economy farther into the hole?

My guess is that American sailors who he wants to put out of work won't be buying his bread. O'Keefe wants to allow competition from what he calls "world shippers" and he complains that using American workers unfairly raises the cost of doing business for his bread company. O’Keefe says that what is running him out of business is being forced to use American workers.

Another claim he is making is that the cost that is running him out of business is "six figures over the life of his business". Let's think about that. "Six figures" over the life of his business is from $100,000 to $999,999. Let's make it $100,000. My thought is that if it was closer to $999,999, he would have used "7 figures". O'Keefe does not state what "the life of his business" is in years. Let's use 10 years. I'm guessing on that period of time but O'Keefe or his attorneys can Comment, and I will use their numbers.

$100,000 over 10 years is $10,000 per year. I wonder how much O'Keefe thinks a 50 pound bag of flour should cost to ship to Hawaii? Any ship will charge something for shipping. O'Keefe says that the $5.50 that he pays to ship a 50 pound bag of flour should be only one-third of that amount: $1.83. So that means the $3.67 per 50 pound bag of flour cost him his business.

I wonder what his position is about lawsuit abuse and tort reform? Is this a crazy lawsuit? Tort reform is on everyone's mind these days. Is this an example of a good lawsuit or a bad lawsuit?

Are all of the bakers in Hawaii going broke since they all have to buy flour and ship it into the state? Wouldn't everyone be on the same footing? Or did the customers choose other bread for other reasons? Was Mr. O'Keefe's business operation efficient? I am sure that the lawsuit will get into all of those details.

O'Keefe and his attorney John Carroll are asking Hawaii’s Chief U.S. District Judge, David Ezra, to rule, on December 7, 2009, that the Jones Act is “excessively expensive for Hawaii’s people and is in violation of the Fifth and Fourteenth Amendments as well as the Commerce Clause of the U.S. Constitution.” In essence I think that claim breaks down to the the core fact that forcing ships to us American workers whenthe bring goods to Hawaii from the west coast is un-American and violates the Constitution of the United States. The Hawaii Reporter summarizes their position:

One of the purposes of enacting the Jones Act, Carroll says, was to ensure the United States of America would be well equipped with a maritime fleet that could compete in a worldwide economy, but it has had the opposite effect: “Unfortunately, it created unconstitutional restrictions on commerce between the state of Hawaii and worldwide shippers as well as on interstate commerce.”

Because Hawaii is separated from the continental United States by 2,300 miles of ocean, he estimates “Hawaii is dependent on ocean shipping for at least 90 percent of every commodity used and consumed in the state.” That had a compound effect on agriculture and the ranching industry. “The expense of agricultural production became prohibitive, not only because of the inbound shipping cost of fertilizers, herbicides, and farm implements, but also due to the outbound shipping costs for our locally grown fruits, livestock and ornamental plants. Hawaii cattle ranchers are faced with an intolerable situation. They often have to transport their cattle, from Kawaihae to Vancouver B.C. on a Canadian owned Corral Lines to remain profitable. The cattle must then be trucked (often for 500 miles) into the U.S. to be fattened and sold. To go direct, some are flown on Boeing 747 aircraft,” Carroll says.

How do you feel about that?

Former Congressman Ed Case, D-Hawaii (2002-2007) is running for Congress with a platform that agrees with O'Keefe on this issue. Case would support a change in the Jones Act to eliminate the American crew requirement on ships coming to Hawaii. Case is apparantly also concerned that "one company" is the only one allowed to bring flour to Hawaii. According to the Hawaii Reporter story:

In a September 2003 Congressional speech seeking an exemption for Hawaii and other non-contiguous U.S. locations from the Jones Act, Case asked, “Is it fair that our federal government creates a monopoly over any key aspect of life in Hawaii? Is it fair that our federal government provides one company, effectively, with the ability to control, to dominate, the lifeline that we have between here and the Mainland for all of our goods? Because that’s exactly what the Jones Act does.”

Case noted that 97 percent to 98 percent of our goods come to Hawaii from the Mainland, all come by shipping. “When somebody gets a hold of our lifeline, that’s a dangerous sign for us. And we’re paying for it in spades, thousands of dollars for each and every citizen of this country and this state, far more money for businesses that employ people and have to deal with those goods and services. That’s not fair, and that’s not the way it should be. We have laws in this country against the creation of monopolies, we believe monopolies are bad. Yet in this case, a federal law creates a monopoly.”

While Case supports a Jones Act exemption for Hawaii, his primary opponent, Senate President Colleen Hanabusa, supports the Jones Act. She supports a crew of at least 75% Americans on ships coming to Hawaii with bread flour (and everything else). What do you think?

Originally posted at InjuryBoard by Wayne Parsons

Micronesian Crewman Killed in Boat Fire on M/V Manaloa at Pier 38

Wayne Parsons — Mon, 19 Oct 2009 05:44:34 GMT

The Manaloa, a 75-foot fishing vessel had just returned from 30 days at sea with 20,000 pounds of Ahi in the hold. The crew had gone ashore to rest and one crew member was on the Manaloa when a fire started at about 10 P.M. Saturday night near at Pier 38 according to a report in the Honolulu Advertiser. The lone crew member aboard had been drinking according to news reports and a propane stove was found near the wheel well area. It appears that he had attempted to cook some food. The investigation is continuing.

According to KHON TV News, the Manaloa fishing vessel, returned home with approximately 20,000 pounds of fish after spending several weeks at sea.

According to Honolulu Fire Department Capt. Earle Kealoha:

At about 10:15 last night, fire units responded to a report of a fire on a boat docked at Pier 38. The fire took a little more than 15 minutes to contain. It appears to have started in the crew living quarters area behind the wheelhouse of a 75-foot commercial Police initially did not find the lone crew member on the boat. They learned after putting out the fire that someone else may boat and returned to the boat where they found the body of a Micronesian man in his 30s in an auxiliary space below the wheelhouse and just forward of the engine room. Firefighters brought the man's body up onto the pier.

According to fire officials, some of the crew members went out to drink, and later one of 'em decided to go back to the boat to cook something.

"He's drink, inside broke window, go inside, and cooking, sleeping, blow up," said Seok Kim, the Captain's friend.

Witness, Lonne Fiero said, "I saw smoke and the fire engines were already here hooking up their water trying to put it out."

"Shortly after arrival we had reports that there might have been someone still aboard the ship. After the fire was contained our crews did go down to the lower sections of the vessel and we did find a male approximately in his 30's," said HFD Captain Earle Kealoha. "This was the only individual aboard the boat."

The KITV News Video shows the charred structure of the boat.

It is unknown who the Micronesian crew member was or whether he had any family here to look out for his affairs and investigate a Jones Act claim that could benefit his family back home. I believe he may be from Ponape. If his negligence was the sole cause of his death then his family may not want to pursue a claim but someone should investigate the matter for the family to determine what happened and explain the law to them. Since the crew member is dead, he can't tell us what happened or defend himself if others say he was at fault. If he has a family back in Micronesia, they may be entitled to compensation under The Jones Act.

Originally posted at InjuryBoard by Wayne Parsons

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

Sara Sutton Dies In Single Car Crash In Hilo

Wayne Parsons — Fri, 16 Oct 2009 13:07:04 GMT

Speed and alcohol may have been involved in the tragic death of Sara Sutton, an 18-year-old Big Island resident.

According to KITV News

"Police found the crashed 2000 Honda two-door sedan against a macadamia nut tree at about 8:30 a.m. on Wednesday. The car crashed some time between 6 p.m. Tuesday and when the car was found, police said.

It appears Sutton's car ran off the side of Maikalani Drive near Amauulu Street in Hilo before hitting the tree.

View Larger Map

Sara was taken to Hilo Medical Center, where she was pronounced dead at 10:22 a.m.

An autopsy has been done to find the cause of death, and police want people with information about Sutton's activities Tuesday evening to call the department's non-emergency line at 935-3322. When alcohol is involved in a serious accident the police often want to see if the person was illegally served by a liquor establishment.

Originally posted at InjuryBoard by Wayne Parsons

Fire Ant Found On Maui

Wayne Parsons — Fri, 16 Oct 2009 12:52:39 GMT

KITV reports that a fire ant was found on a Maui farm. The fire is small but packs a mean bite. The insect is 1/16th inch long and is light orange in appearance. They aren't fast moving like some ants. It can cause blindness if it bites your pet. The farm on Maui where the fire ant was found is in Waihee.

Dept. of Agriculture Image The fire ant was first found in Hawaii on the Big Island in 1999.

According to KITV:

"This type of ant can build multiple colonies that are all interconnected. So, it's kind of hard to say it's a big colony or not, but it appears to be covering about a half acre, which is actually a fairly small area. So we're very hopeful we caught it early," Department of Agriculture Plant and Pest Control Branch manager Neil Reimer said.

Fire ants originate from South America and have been moving north for decades. Like most things they come to Hawaii by airplane or boat. Their main damage is destroying plants.

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