Thursday, September 30, 2010

Too Many Lawsuits? With Pharma Giant Novartis, Apparently There's Not Enough...

Die hard "tort reformers--" big business, The Chamber of Commerce, and the insurance industry--are famous for constantly pushing for lawsuit limits and "reforms" as being "good for the economy." Of course, what they continually ignore is that legitimate lawsuits often result in substantial benefit to the public.

Take the recent shenanigans of pharmaceutical giant, Novartis. For SEVEN YEARS, Novartis was paying doctors illegal kickbacks, disguised as "speaking fees," to persuade doctors to promote untested and FDA unapproved uses of Trilepetal, an anti-seizure medication. Turns out, doctors were prescribing Trilepetal for all kinds of maladies, like bipolar disorder and neuropathic pain, according to this article.

Bottom line: we as consumers were guinea pigs, ingesting drugs for untested conditions in a giant scheme to promote this drug. It took some whistleblowers to expose this fraud, and a massive lawsuit to make Novartis accountable. The settlement? A mere $422 million that will be reimbursed to the federal and state governments, like Ohio, who covered payments for Trilepetal prescriptions under Medicaid. Ohio's share? $12.5 million pumped back in the Medicaid coffers.

A classic example of institutional greed run amok, patient safety be damned, and a lawsuit that righted the ship and returned money to government programs.

I know it's a shock to The Chamber Of Commerce that companies like this are capable of wrongdoing in a race to improve stock shares and the bottom line, but it does happen (see, BP, tainted egg recall, etc). And when it does, the last thing we need is to water down one of the main weapons in the societal arsenal for ensuring that corporate America is held to the same principles of "personal responsibility" and "accountability" that polticians demand of us as individuals. That weapon is a lawsuit.

Insurance Company Recorded Statement Reveals "Tricks" To Obtain Your Social Security Number

Recently I received a transcript of a client's recorded statement taken by an insurance company adjuster. The client gave the statement before I was hired to represent her.


There are three basic reasons an insurance company will try to obtain a recorded statement as soon as possible after an auto accident, or a grocery store "slip and fall": (1) obtain the injured person's basic version of what happened; (2) find out what injuries were sustained. The first two reasons are legitimate. Beware of reason no. 3 however: convince the injured person to give up basic background information so the insurance company can search mammoth databases for any "dirt" they can find, such as your credit history. Ask yourself this: what does your credit history have to do with your completely torn rotator cuff or fractured ankle after colliding with a drunk driver?

One of the main tools for fishing around in your medical or financial history getting the injured person to divulge his or her social security number. Here's how a client was "nudged" into divulging her social security number. Note the subtlety and the order of the questioning (answers omitted):

Can you just give me your first name and spell your last name?
How old are you?
What is your date of birth?
Are you married?
And what is your husband's first name?
And, for identification purposes, what's your Social Security Number?

"Identification purposes?" This is code and a trick for: "We want your social security number so we can do some fishing."

There are LOTS of reasons why you should NEVER give your SS number to an insurance company in this situation. Privacy and identity theft issues aside, do you think that the drunk driver's insurance company will divulge their driver's social security number to you if you ask for it? Not even for "identification purposes?"

Dealing with insurance companies on your own after an accident or collision is often a one way street, and you are not driving or in control of the car...

Friday, September 17, 2010

How To Protect Yourself Against Dishonest Attorneys

Recently, Ohio's Client Security Fund awarded approximately $267,000 to 33 Ohioans victimized last year by dishonest and unethical attorneys. It's no news flash to suggest that there are some bad apples out there that stain our profession.


How do you as a legal consumer avoid these bad actors? In my opinion, folks in need of legal services are looking for two major things: competence and trustworthiness. So where are you going to find those attributes in an attorney? Through the phone book or (even worse) TV ads? Well, good luck with that. Just take a look at either, and you'll realize they all spew the same tired and totally meaningless platitudes like "experienced," "committed," "caring," "aggressive," "will fight for you," and the obligatory throw in: the "free consultation." Helpful? Ask this: what attorney in his or her right mind would take out an ad that said: "I'm inexperienced, lazy, not aggressive, and don't really care about you, but I want your business?"

Bottom line: attorney advertising is basically useless in your search for someone who will competently and ethically take care of your legal problem. The book, “Your Ohio Accident” explains how you should search for an attorney, what questions to ask, and what information you should be given before you hire one (available for FREE on our website by simply clicking on the book cover). Cookie cutter phone book ads and insulting TV spots should be the last place you look. I wonder how many of the attorneys who ripped off Ohio clients to the tune of almost $300,000 had one of those “committed” or “caring” phone book ads……

Wednesday, September 15, 2010

Hospitals Leaving Sponges (And Towels, Hemostats, Scissors, etc) In Patients-You Be The "Judge"

This headline about a Florida hospital leaving a 12 x 12 sponge in a patient is not really news to me. After all, a few years ago I was involved with a lawsuit where an even larger foreign object was left in a patient. But I digress. This story is newsworthy for a few reasons.

First, it is not an isolated event. According to the article and other studies, this happens almost 2,000 times a year. Leaving objects in patients during surgery simply should not happen.

Second, the patient was a local judge. Whoops. I'm thinking that judges are probably one of the worst patient profiles for a colossal, preventable medical error like this. Although the judge settled with the hospital, he declined to be bottled up with a restrictive confidentiality agreement, which is standard in settlements like these. The reason hospitals usually demand confidentiality is clear: PR damage control. If the patient in this case was not a saavy judge who refused to be gagged with a confidentiality clause, nobody would have heard about this medical mistake.

Third, Florida, like Ohio, has passed limits or "caps" on what malpractice victims can recover, even when the negligence is clear and indefensible. So, no matter how much misery and life altering changes victims like this judge endure, the hospital's liability for its mistake is capped. The message? Give corporate America and hospitals a break even when they are caught dead to rights.

Finally, groups like The Chamber Of Commerce love to trot out and display occasional goofball lawsuits (like the nitwit who sued a dry cleaners for a bazillion dollars for ruining his pants) as the poster child for what is wrong with our legal system, and why we need lawsuit "limits" on recovery in all personal injury cases, including malpractice cases. But "sponge" cases like this one, not to mention "wrong site" surgeries, medication errors, the BP oil spill, The Upper Big Branch Mine explosion, and the 228 million egg recall, are continuing reminders that institutions are error prone, fallable, and often greedy at the expense of safety.

I'm pretty sure The Chamber will not be highlighting any of these notorious cases of inexcuseable negligence in its future press releases. They'd rather talk about the "pants" lawsuit and whatever other goofball lawsuits they can scrounge up.

Thursday, September 9, 2010

ERISA Health Plan Can Legally Steal Every Penny Of Your Auto Injury Settlement...And What You Can Do About It

Frank McCutcheon did all the right things. He had a job with U.S. Airways, and earned health insurance benefits with them. He also exercised personal responsibility in buying $100,000 worth of "Uninsured/Underinsured Motorists" coverage in the unlikely event that some irresponsible driver with low liability limits hit him.

Sure enough, the unlikely became reality, and Mr. McCutcheon was creamed by a driver with only $10,000 in liability coverage. His health plan paid his medical bills of about $66,000, and reminded him of that little subrogation clause in his plan that said: "Hey Frank, if you make any recovery or settlement, we're entitled to be reimbursed out of your settlement."

He collected the negligent driver's $10,000, and his underinsured motorists' benefits of $100,000. And then his health plan claimed reimbursement of the $66,000 it paid out of McCutcheon's $100,000 settlement.

Unfortunately for McCutcheon, his health plan was a a plan set up under The Employers' Retirement Income Security Act, known as "ERISA." Federal courts have interpreted this law to permit health plans to confiscate injured persons' injury settlements even if it leaves them without a penny. Ridiculously unfair, but unfortunately legal.

People like Mr. McCutcheon don't know about how their insurance becomes a trap door for their legal rights until they're on the receiving end of a bad collision. The only thing that would have saved McCutcheon here was if he had purchased $250,000 or even $500,000 of uninsured/underinsured motorists' (UM/UIM) coverage before his crash. For example, if his claim was worth $200,000, he would have at least had a decent recovery after his health plan took its $66,000 "cut." Purchasing the highest amounts of UM/UIM you can afford is the ONLY way you can level the playing field against the ERISA monster looking over your shoulder with its tentacles in YOUR settlement...

Tuesday, September 7, 2010

Morphine Overdose Medication Errors In Hospitals--An Alarming Trend

It appears that hospitals are exposing countless patients to a dangerous risk of avoidable narcotic drug mishaps. A recent study from an independent Pennsylvania agency detected 1,694 medication errors over an 11 month period related to administration of morphine's synthetic equivalent, hydromorphone (also known as Dilaudid).

The problems with hospital mismanagement and medication errors associated with narcotics like morhpine and Dilaudid are numerous. First, Dilaudid is a more potent drug than morphine. As the study points out:

" order for an opioid-naïve patient for 2.5 mg to 5 mg of IV morphine would be equivalent to 0.3 mg to 0.67 mg of HYDROmorphone...The lack of knowledge about HYDROmorphone potency and the difference in potency between morphine and HYDROmorphone has frequently led to serious medication errors, especially when a patient is switched from morphine to HYDROmorphone."

In fact, the most frequent medication error associated with Dilaudid was "wrong dose/overdose," followed by giving it as the "wrong drug." How big is the scope of this problem?

In 2007, a review of 8,400 wrong drug medication error reports submitted to the Authority showed that the most commonly involved drug pair was morphine and HYDROmorphone.15 Present analysis of wrong drug medication errors mentioning HYDROmorphone reveals that 70% involve mix-ups with morphine

This study is alarming for a number of reasons. First, morphine and dilaudid are a frequent drugs of choice in ER's, surgery, and acute care trauma units. Second, and more importantly, both drugs carry a substantial risk of respiratory depression, meaning that they can depress breathing to dangerously low levels. If patients receiving too much of these narcotics are improperly monitored, depressed breathing/ respirations can lead to anoxia (an inadequate lack of oxygen in the arterial blood), which can lead to brain damage if not timely reversed with reversal drugs like Narcan.

So, if you have a loved one in the hospital, you might want to ask if he or she is being given morphine or dilaudid, how much is being given, what route it is being given (a shot or "bolus" versus an IV drip), and the frequency of the dosage. Your inquiry might just prompt a nurse to re-check or make sure that the correct drug is being given in the correct amount.