Monday, January 26, 2009

Doctors Bringing Class Actions--$350 Million Reasons Why Doctors Love Lawsuits (No Caps Either...)

Sometimes seemingly unrelated events line up or intersect with one another and serve to prove a larger point. Pharmacists refer to this as a "synergistic effect," like when 2 medications combine to become more potent than if taken individually. The first noteworthy "event" is an American Medical Association (AMA) report of a $350 million class action settlement on behalf of doctors who were shortchanged in reimbursements due to faulty and one sided health insurer reimbursement databases.

There's two ways to look at this issue. The first is the right and fair way. It's true that health insurance companies are unfairly squeezing doctors by ratcheting down their reimbursement rates, as I've noted previously. As such, if these insurance practices are unlawful, doctors have every right to sue to recover the millions they're due. That's what our court system and right to trial by jury is all about.

Now let's look at it from the perspective of how the AMA feels about anyone else accessing the court system and bringing a lawsuit....say, a malpractice suit against a doctor who cuts off the wrong leg, or a hospital that mislabels pathology slides, causing a woman to have her breast mistakenly removed. Fairness and consistency might dictate that if doctors can sue and collect $350 million, an injured woman could collect whatever damages she could prove to a jury--whether it's $500,000 or $1.3 or $3.4 million for the wrongful removal of her breast. Only fair, right? You know, the "what's good for the goose is good for the gander" saying we've all heard...

Enter the second "event" I was referring to. The other day, a Las Vegas jury returned a $2.5 million verdict against a physician who failed to detect colon cancer in a 27 year old woman, who died leaving a 5 year old child.

$350 million versus $2.5 million. So does the AMA believe that families harmed by medical negligence have the same right to bring a lawsuit and have a jury decide what damages are due to the injured patient? No, not really. When it comes to people bringing legitimate lawsuits against physicians or hospitals, the AMA has spent millions and millions on a militaristic lobbying campaign to limit physicians' liability to a meager $250,000 cap on someone's lifetime of misery and pain. And the AMA supports a whole bunch of other "reforms" that make it more difficult for malpractice victims to pursue legitimate claims. And by the way, Nevada has an arbitrary "cap" of $350,000 for victims "pain and suffering," in this case the 5 year old girl who lost her Mom.

Hmmm. Physicians get to sue the pants off of the insurance industry to recover their losses, but when you lose your leg or your mother, now there must be "limits" and "caps" and this is supposedly all good for patient access and care, according to the AMA.

The AMA's "horse pill hypocrisy" on the issue of lawsuits is difficult medicine to swallow if you're on the receiving end of a preventable medical tragedy.

Abusive Debt Collection Practices--And What To Do About Them

It seems like I'm hearing more and more about really nasty debt collectors who are hounding people, including some of my clients. These clients are being stuck with large outstanding balances on their collision related medical bills due to high deductibles and co-pays. Since unfair debt collections law is a growing field of expertise, I've asked Dayton consumer attorney Amy Wells ( to write a guest column on abusive and illegal debt collection tactics. Her insight on this issue is posted below....thanks Amy!


One industry is not feeling the sting of our serious economic recession and mass job losses: debt collection companies. Many consumers are finding themselves unable to sustain payments on their credit accounts and medical debts. Delinquent credit card accounts hit a six-year high in 2008.

Creditors unable to devote the resources necessary to pursue the thousands of people defaulting on various accounts have turned to debt collection firms. In many instances, the debt collector buys charged-off accounts from the original lender for pennies on the dollar. Regardless of the nominal amount paid for the debt, the debt collector usually tries to recoup most, or all, of the original debt.

The number of debt collection firms has mushroomed from about a dozen in 1996 to over 500 today. This can only be expected to worsen as the economy spirals downward.
The proliferation of aggressive collection firms has exposed consumers to a “new breed” of debt collectors, which frequently hound and oppress consumers to pay stale bills for amounts that may or may not be correct, or worse yet, may not even be theirs. Whether a consumer actually owes the debt or not, debt collectors may not engage in unfair, deceptive or abusive tactics.

In an attempt to squeeze money from consumers, some collectors resort to illegal tactics such as harassment, verbal abuse, and even threats of violence or legal action. In more egregious cases, the debt collection company will go so far as to harass and abuse a family member with a similar name, or even the wrong consumer!
Some signs that you may be a victim of unfair collections include:

• Third parties other than you are being contacted;
• You received Postcards from the Collector;
• Calls at unusual times or unusual places (calls before 8:00 a.m or after 9:00 p.m. or at your job when the debt collector knows you are not permitted to take such calls);
• Continued contact after written instructions to stop;
• Abusive, threatening, or harassing contacts;
• Collectors refusing to identify themselves;
• False or misleading representations; and
• Failure to report a debt as “disputed” to the Credit Bureaus.

What you can do to protect yourself if you are a victim of unfair collections:

• Keep a detailed log of all communications, and copies of all documents;
• Dispute the debt in writing within 30 days;
• Record harassing phone calls (Be certain to consult a legal professional regarding the legality of recording in your state);
• Don't take the calls (This does not cancel your debt. The original creditor or the collection agency may still decide to sue you);
• Try to negotiate the debt (Be certain to get everything in writing before you pay any money. And, consider contacting a legal professional to ensure the enforceability of any written agreement);
• File a complaint with the Federal Trade Commission or Ohio Attorney General; and
• Consult with an attorney about filing a lawsuit.

Debt collectors who violate your legal rights by using unfair and abusive collection tactics may be liable for your out-of- pocket losses (e.g. loss of income, counseling expenses, telephone charges), non-economic damages (e.g. anxiety, loss of sleep, loss of enjoyment), and also your legal expenses.

Contributed by Amy L. Wells, consumer attorney at Behnke, Martin & Schulte, LLC.

Tuesday, January 20, 2009

"Cashing Out" Injury Victims--Not So Progressive?

The other day I received a call from a potential client, who was broadsided at an intersection by a driver who left the scene, and apparently was later found in possession of drugs. Within 3 days, a Progressive adjuster sent the caller a check for a couple thousand dollars, and told him that unless the check was cashed, the claim would be "closed out." He returned the check--good move.

The second good thing he did was not return the scads of calls from chiropractors who've been calling him offering their "services" after getting ahold of his accident report (something to avoid at all costs in my humble opinion as I explained in a previous post). He asked me: "Can they just close my claim since I didn't accept the check?" Answer: No. In Ohio, you have two years to pursue a claim against the negligent party. More importantly, it raises the question: what should people do in this situation? I discuss this in "Your Ohio Accident...And How To level Your Playing Field." Below is an excerpt of the book...

Short answer: probably, but not always. Sometimes, we will advise potential clients that they can do just as well handling their own claim as we could do for them if we represented them. But this rule is the exception, and not the norm. Below is an example of practically the ONLY circumstance where you can handle your claim on your own.
EXAMPLE: You were rear ended. You went to the local ER (always a good medical idea as a precautionary measure), got treated and released, and waited a few days to see how you felt. You might have been stiff and sore for a few days or a week. You might have even seen your family doctor (also a good idea) just to be checked out. You may have missed a day or two from work, but eventually, you returned to work, and generally got better. No physical therapy, no series of diagnostic tests, or other treatments or bills – a happy ending to an initial nightmare.

If this is your accident scenario, a couple rules come into play. First, you have a limited claim. You’ll eventually be offered your medical bills plus a minimal amount for your pain and aggravation. Some insurance companies even have a name for this: an “inconvenience fee” (notice how your pain has been labeled just an “inconvenience”). Basically, the insurance company is looking to “cash you out.” Definition: in exchange for the small figure they’ve offered you, you sign a “Full Release,” which means your claim is over. If you have any further treatment or bills after you sign, forget it. Signed release = claim is over, unless you were fraudulently tricked into signing it.


The same is not true, however, if your injuries require anything more than a simple doctor’s visit, such as a couple of doctor or chiropractor visits, physical therapy, tests, or injuries like fractures or injuries requiring surgery. And this brings into play RULE NO. 4 OF THIS BOOK: THERE ARE MANY WAYS YOU CAN RUIN OR JEOPARDIZE YOUR CLAIM WITHOUT EVEN KNOWING IT, so you should consider hiring a competent attorney to assist you in leveling your playing field against the insurance company.
Some of these sins are minor, and others will kill your claim. Many of the minor ones occur before the injured person ever calls us, and some can be minimized or repaired, but in no particular order they are:
(To read more, click here for a FREE copy of the book...)

I have no idea whether this caller has a limited claim he can handle on his own or one that I can help him with. Every injury is different. Some people recover quickly with little to no need for medical help, and other injuries get worse over time and need medical intervention and time to heal. But the surest way to kill your claim is to sign the "cash out" check and the release. Insurance companies have the right to follow a business model to cash you out as soon as possible and cut off their exposure. And you have the right, and the time, to decline.

Saturday, January 17, 2009

Handling Your Own Personal Injury Case...And Getting Handled (Lessons Learned)

So you want to handle your personal injury case against an insurance company on your own? Read on. Recently I was appointed by a judge as a "Guardian Ad Litem" for a minor child injured in a collision. The child's parent negotiated the child's claim with the insurance company and did not seek legal counsel. The judge, who reviews and must approve all minors' settlements under Ohio law, was rightly concerned whether the settlement was a fair one to the child. It was my job as guardian to review the claim, te child's injuries, and the negotiations and reach and independent opinion of the fairness of the settlement.

When I reviewed everything, I discovered that the negligent party's auto insurance company had attempted to reimburse the family's health insurance company for $10,000 worth of medical bills the health insurance company had previously paid (this is known as "subrogation"). One small problem: the health insurance company in this instance had no legal right to reimbursement.

The auto insurance company never took the necessary steps to determine whether the health insurance company had legal reimbursement rights. It simply assumed--wrongly--that it had to reimburse the health insurance company. Verifying a health insurance company's reimbursement rights is something a competent personal injury attorney does, or should do, in every case. In essence, the auto insurance company made an incorrect legal decision, without explaining any of this to the parent, to the tune of $10,000.

To make matters worse, the settlement offer made by the insurance company, and accepted by the parent, was inadequate. Thankfully, the judge undid the settlement and the insurance company made a more reasonable offer, and the case was resolved.

The parent told me after the hearing: "Wow, I didn't realize any of this." He was thankful the judge had carefully reviewed the situation and appointed someone to independently evaluate it.

General rule: in any accident claim, you "go it alone" at your peril. Now you know why many insurance companies discourage injured folks from hiring an attorney with promises to "handle your claim fairly." So who got handled here? And, by the way, this was the family's OWN insurance company.

Our free book, "Your Ohio Accident...And How You Can Level The Playing Field," explains when you'll need a competent attorney to represent you, how to choose one, and the one circumstance when it's OK to "go it alone" if you're so inclined.

Sunday, January 11, 2009

Ohio Auto Insurance Limits: "We're 46th!" (Woohoo!)

Yet ANOTHER reason why Ohio auto insurance laws are lousy and favor insurance companies over consumers. We all know that Ohio law requires you to have liability insurance in order to drive. So does every other state. But some states protect motorists at the hands of dangerous drivers better than others.

For example, most states require drivers to have at least $25,000/50,000 liability limits. Here's what it means: if you are injured by a negligent motorist carrying "25/50" limits, you can collect from the negligent driver's insurer up to $25,000 for your individual injury claim if your injuries and bills and lost wages merit it. And if two or three members of your family were injured, for example, the most that can be collected for everybody is the $50,000 total limit.

These limits are not great, but at least they offer injured drivers more ability to recover their losses than states with bare bones limits requirements. General rule to remember: the higher the mandatory liability limits, the more protection consumers have.

For decades, Ohio law has required that drivers carry puny limits of $12,500/25,000. Forty six states have higher liability limits than Ohio. Yes, that's right--Ohio has stagnated at the bottom of the barrel with Louisiana, Oklahoma, and Florida as having the crappiest minimum liability limits laws in the U.S.

For YEARS insurance companies in Ohio have fought tooth and nail against joining almost every other state and raising minimum limits to more reasonable 25/50 limits. The arguments against simply bumping up the limits a notch usually involve the normal, threadbare ones like "it will make insurance more expensive", "it's bad for consumers," "bad for Ohio's economy," "the sky will fall, insurers will pack up and leave, Ohio will collapse and have to secede from the Union and join Canada, etc" (that last one was a slight exaggeration but you get the point...).

Nonsense. The difference in price between a "12.5/25" policy and a "25/50" one is probably less than $50 per year. If you don't believe me, just call and get some quotes on the difference between the two. I'll bet there isn't much of a difference.

More importantly, if you get clobbered by someone with minimal "12.5/25" limits, it means (1) you might have to access YOUR uninsured/underinsured motorists' policy with your own company to recover the losses not covered by a flimsy "12.5/25" policy; and (2) if you can't make a claim against your own policy and are stuck with thousands in unpaid bills, you might have to go on Medicaid or file bankruptcy.

I guess our Legislature must believe that increasing government assistance rolls and bankruptcy is better than making insurers offer in Ohio what they offer in 46 other states. And, by golly, we sure can't have any insurance laws that PROTECT consumers now, can we?

There are numerous more reasons why Ohio insurance laws are HORRIBLE for consumers, and what you can do about it to protect your family. Just click here to order my free book, "How To Buy Auto Insurance In Ohio To Protect Your Family,"** and its yours.

** Doubles as an all natural insomnia cure. Not to be read in conjunction with any other books or materials, particularly your insurance policy, which may caused bluured vision and headaches...

Tuesday, January 6, 2009

Verizon's $32 Million Judgment...Litigation Lottery?

Here's the scenario: some company apparently was "cybersquatting" Verizon's trademarks (illegally registering domain names--633 of them--that were either identical or similar to Verizon's). So Verizon sues, according to this article and is granted a $32 million "default judgment." Definition: a judgment granted to the party bringing a lawsuit when the party being sued doesn't timely answer the complaint.

Newsworthy? Probably not. Will it stick? Perhaps not. Many of these "default judgments" are vacated if there are compelling reasons for not answering the complaint. And if Verizon was truly harmed to the tune of $32 million and can prove it, that's the purpose of our civil justice system--to have our court system, without government interference, provide a mechanism for making wrongdoers accountable commensurate with the harm they cause.

But here's what is newsworthy. If this were an injured plaintiff who sued Verizon and obtained the same result, we'd be reading press releases and quotes from groups like "The Institute For Legal Reform," a multimillion dollar wing of The Chamber Of Commerce, railing about how businesses are being held hostage by "lawsuit abuse" and how the tort system is a "litigation lottery" and other drivel.

But since this was a large corporation seeking to enforce its legal rights, somehow I don't think we'll be hearing from The Institute on this one any time soon. Businesses exercising their rights and suing for millions-- good. Injured citizens suing corporate America--bad. It's all you need to know about "The Institute's" position.

Thursday, January 1, 2009

Dangerous Chinese Products--Ohio Law Protects Them

A happy and hopefully prosperous New Year to all. The New Year got me thinking about the Chinese New Year, and which animal will be represented as their 2009 symbol. That, in turn, made me think about all the recent news stories about dangerous Chinese products that continue to find their way into the U.S. Here's a short list of what we've seen recently:

Poisonous toothpaste. Kids' jewelry and metal toys loaded with toxic lead. Food contaminated with pesticides, carcinogens, and bacteria. Contaminated heparin. Even poisonous pet food that killed 39,000 animals. All these products had two things in common: they were made in China and consumed or used in the U.S.

According to a recent report from the Consumer Product Safety Commission, "the value of U.S. imports of consumer products manufactured in China was $246 billion, comprising approximately 40% of all consumer products imported into the U.S."

What if a dangerous product injured a child in Ohio? Under recent "tort reform" laws passed by Ohio lawmakers in 2005, Chinese manufacturers would enjoy numerous legal protections, including limits on what injured Ohio victims could recover. Chinese manufacturers' liability would be capped or limited to figures as low as 350,000. And their liability for punitive damages (damages designed to punish for willfully ignoring product safety concerns) would be limited to two times the amount of "compensatory damages" (items like medical bills or physical pain and disfigurement).

Worse yet, they could be 100% IMMUNE from punitive damages if the product causing harm was manufactured in accordance with applicable FDA standards.

One large problem however: The FDA in a recent report has acknowledged that:

many products come from countries with little ability to provide the regulatory oversight needed to assure the safety of the products exported; and
lax oversight in many foreign places presents opportunities for products to be unintentionally contaminated, or intentionally contaminated by those who mean harm, by counterfeiters, or by those who try to profit by "cutting corners."

In fact, the situation is so bad that the FDA set up a special program to take extra measures to try to ensure that Chinese manufacturers produce safer products. But we all realize now that dangerous products, food, and medicines are still making their way into the hands of U.S. consumers.

So why on earth should foreign manufacturers enjoy limited liability in Ohio for producing dangerous products? Because numerous business groups like the Ohio and U.S. Chamber of Commerce, The Ohio Manufacturers' Association, The Ohio Society of CPA's and insurance companies spent millions lobbying for Ohio products liability reforms for ALL manufacturers "to improve our legal climate." And these laws as passed protect ANY domestic or foreign manufacturers, even bad ones that cut corners on product safety and expose us to all sorts of life threatening risks. Nice to know that this is what our Legislature has been up to recently, isn't it?

Unfortunately, nobody will notice or even care about this issue until one of these products causes a tragedy to an Ohio family. And then you can expect people to be shocked and outraged at the idea that bad manufacturers are somehow protected by Ohio law. I wonder if these lobbying groups (and the politicians who voted for these laws) will then say that protecting these companies is "good for Ohioans."

Which animal is representing the 2009 Chinese New Year? Ironically, it's the ox. So whose ox is really being gored here?