Monday, November 30, 2009

Why Does Health Care Fraud Play A Back Seat To Health Care "Reform?"

Justinian Lane has an insightful post about an issue often ignored in the national health care debate--that health care fraud costs us three times more than the national costs associated with medical malpractice. This caused me to do a bit of my own research, where I found The Department Of Health And Human Services And Department Of Justice Health Care Fraud And Abuse Conrtol Report For The Fiscal Year 2008 (I think the title of this report needs to be a bit longer...) Some mind blowing stats of the Report...

During FY 2008, the Federal Government won or negotiated approximately $1 billion in judgments and settlements2, and it attained additional administrative impositions in health care fraud cases and proceedings. The Medicare Trust Fund received transfers of approximately $1.94 billion during this period as a result of these efforts, as well as those of preceding years, in addition to over $344 million in Federal Medicaid money similarly transferred separately to the Treasury as a result of these efforts. The HCFAC account has returned over $13.1 billion to the Medicare Trust Fund since the inception of the Program in 1997.

Closer to home, an Ohio physician alone was responsible for a fraudulent billing scheme totalling $1.8 million:

An Ohio physician was sentenced to 37 months in prison after pleading guilty to conspiring to engage in a scheme to defraud Medicare and other health care benefit programs by performing medically unnecessary nuclear stress tests that involved injecting nuclear medicine into patients. During the conspiracy, the physician received at least $1.8 million in reimbursement for the medically unnecessary tests. As part of his guilty plea, the physician agreed to give up his medical license, to forfeit more than $1.8 million, and to be permanently excluded from participation in all federal health care programs.

These staggering figures include only the shysters who got caught. If we're talking billions of dollars recovered, it probably represents the tip of the iceberg as to the amount of actual fraud being perpetrated on U.S. taxpayers.

Yet, despite this rampant, continuing fraud, all some politicians want to talk about is limiting patients' right to sue even in cases of legitimate malpractice. Fraud apparently trumps fairness in this goofy debate...

Wednesday, November 25, 2009

Corporate Lawsuit Hypocrites

Frequently I have railed on the Chamber Of Commerce, corporate America, and professional groups who have cried and moaned for years for legal or tort "reforms" making it harder for injured and ripped off individuals to sue. These groups all have one thing in common: they want to chop down your right to sue, but wish to retain THEIR right to sue you or another business without any limits or strings attached. In other words, they're a bunch of hypocrites.

Well, Joanne Doroshow at The Center For Justice And Democracy nailed this issue in a recent post. It's my thoughts exactly (only better articulated). Enjoy the gentle breeze of the truth entering the room as you read it.

A healthy and peaceful Thanksgiving to all...

Wednesday, November 18, 2009

What If Your Doctor Or Chiropractor Won't Bill Your Health Insurance Company After An Accident?

If you've been injured in a collision or for any other reason (a slip and fall in a store, for example), your medical provider may just tell you: "there's no need to bill your health insurance company." This provider may insist on having you sign a paper stating that you must pay their bills out of your settlement if you settle your case in the future.

If you live in Ohio and have health insurance, this practice may be illegal. Ohio law says that:

every provider or health care facility that contracts with a health insuring corporation to provide health care services to the health insuring corporation's enrollees or subscribers shall seek compensation for covered services solely from the health insuring corporation and not, under any circumstances, from the enrollees or subscribers, except for approved copayments and deductibles.

What this means is that, if you have health insurance, your medical provider must bill your health insurance company if that provider is a member of your health insurance network or plan. The reasoning is simple: if medical providers agree to be listed as members of a health insurance plan, they must abide by the rules of the health plan. In exchange for being sent or accepting patients, providers agree to be paid what is "reasonable and customary" for their billed services.

So why would a medical provider seek to skirt the agreement and Ohio law on this issue? Example: if your bill for your accident related injuries is $2000, the "reasonable and customary" payment might be $1,300. By trying to get you to bypass submitting the bill to your health insurance company, the provider is attempting to be paid dollar for dollar for his or her bill--$2,000 in the example above.

If you come across this practice, you need to report it to your health insurance company immediately. Many times I have had to write a polite letter to providers reminding them of their obligation under Ohio law to bill health insurance.

And here's why it's beneficial in almost all instances to submit your accident or collision related bills to your health insurance company.

Saturday, November 14, 2009

More Insurance Company Surveillance Tactics

Recently I wrote about how insurance companies often engage in shady surveillance tactics. A recent story shows what lengths they'll stoop to, and the stupid arguments they'll make to deny disability insurance benefits.

The claimant, Rocky Whitten, broke his neck. Three of his doctors determined that he was permanently disabled. Despite this, The Hartford hired a private investigator to follow and videotape him. The surveillance did not catch him digging ditches or playing football. The videotape captured him...eating chips and salsa in a restaurant. From this "damaging" video, The Hartford had its own doctor conclude that because Whitten could use his hands to eat chips, he was capable of sedentary employment, and denied his entitlement to disability benefits he paid for under the policy.

Not suprisingly, Hartford reversed its position when ABC News broke the story and exposed Hartford's sleazy tactics and downright stupid legal position.

This story shows what efforts insurance companies will go to when it comes time to pay benefits under disability insurance policies, even in cases where claimants are legitimately and seriously injured. Companies like The Hartford figure that they have nothing to lose by using desparation surveillance tactics.

Although the article didn't say exactly when The Hartford decided to secretly video its own insured, typically insurance companies use surveillance after they take the deposition of their own insured. They will ask insureds at their deposition detailed questions as to what they can no longer do, and then hire the investigator to follow insureds in an attempt to "catch" them doing activites inconsistent with their deposition testimony.

So, if you have an injury or disability claim, the most likely time you will be followed or videoed is about two to four weeks after your deposition is taken. Just so you know....

Wednesday, November 11, 2009

Trial Tips--Constructing A Solid Final Argument

Final argument is what every trial attorney lives for. It's the equivalent of being on the mound with a 3-2 count in the 9th inning, or launching the final shot at the buzzer. It's the weaving together of a patchwork of evidence that hopefully makes sense to the jury at the apex of the summit of the trial.

We all look for the necessary binding or fastening materials to tie everything together. A quote, a parable, a metaphor or analogy--these are the binders we use. These are our stock in trade, and every good attorney scavenges for the right one to bring home to the jury. I collect two things. One is fishing lures and equipment, since I am a certified fishaholic. The other thing I collect is quotes, phrases, and other words of wisdom. I have a weathered notebook that I've kept in my desk for years. Every time I read a quote or phrase or story that is appealing, I copy it into my trusty journal for use in a legal brief or at trial.

A great source of inspiration for me is music lyrics. In my mind, there is no greater lyricist than Neil Young. For example, in a personal injury case involving injury to or loss of a child, "I Am A Child" offers this insightful thought:

I am a child.
I last awhile.
You can't conceive of the pleasure in my smile.

Message: you're only a child for so long. No child should have to suffer the loss of innocence or have it broken or shortened due to the carelessness of others.

I've also had cases where my clients were younger and not earning a ton of money at the time they were injured. Perhaps they were just young and immature and just getting by or not realizing their full potential. In those cases, the defense often argues, sometimes very subtly, that the serious injury to that person was no big deal since they weren't exactly setting the world on fire when they were injured. This argument has always been offensive to me, since so many of us are late bloomers, and it doesn't mean we won't someday "figure it out" and reach our potential. Neil's "Comes A Time" beautifully speaks to this issue:

Come's a time, when you're drifting.
Come's a time when you settle down.
Come's a life, feelings lifting.
Pick that baby right up off the ground.
This old world keeps spinning round.
It's a wonder tall trees ain't layin down.
There comes a time.

I think those lyrics put the idea of growing up and realizing potential into proper perspective. So here's a small tribute to my man Neil and a tip of my cap as an inspiration to me and to helping my clients. "Long may you run," Neil (another great song by him), and Happy Birthday (born Nov 12, 1945). Long may we all run as we figure out this thing called life.

Friday, November 6, 2009

Loser Pays Legislation: The Only "Winners" Are Insurance Companies

Recently, some politicians have attempted to insert a national "loser pays" rule into health care reform legislation. The "Pop Tort" website nailed the idiocy of this legislation in a recent post entitled "Loser Pays Is A Medical Malpractice Loser." In addition to the excellent points made by the post (that a "loss" in court does not mean that the case was frivolous), there is one other fatal flaw of this legislation that makes it a horrible idea: just how do you define just who is a lawsuit "loser?"

Example. A surgeon leaves a large towel or sponge or clamp inside your body after abdominal surgery. After months or years of pain, swelling, fever, and after you were misdiagnosed with every wrong condition under the sun (or worse yet told it is "all in your head"), a prudent physician finally gets a CT scan, compares it to your surgical CT, and figures out that you have a huge foreign object inside you. After hours of surgery to remove the object, which has now adhered to your insides, you are left with permenant damage to your internal organs.

You obtain the medical records. Not surprisingly, all the sponge and instrument counts in the surgical records were correct. So who dropped the ball--the hospital surgical team or the surgeon? You sue both the hospital and the surgeon. Each denies negligence and each blames the other for the colossal screw up.

You go to trial, and the jury finds that the surgeon was negligent but the hospital was not, and returns a modest verdict of $350,000. Your case was a "winner" against the surgeon but a "loser" versus the hospital. Under "loser pays" legislation, the hospital moves after the verdict to order you to pay them $150,000 in legal fees and expenses for defending the claim. If you think this figure is bloated and unrealistic, think again--hospital attorneys bill by the hour and it is not uncommon for them to charge $2-400 per hour and hire expensive experts who charge $500 per hour for a case that lasts 2 years, so you do the math...

So you won the case, but well over 50% of your recovery goes right out of your pocket to lawyers you did not hire and who actually fought against you! How does "loser pays" legislation sound now? Who does this law benefit? Not you. But the hospitals' malpractice insurance companies will make out like the bandits they are.

No wonder insurane companies are pushing for this law. For over two hundred years, we've had the rule in the U.S. that each side pays its own attorneys fees, unless the lawsuit was considered frivolous. Now, the same politicians who rail against government intervention are attempting to "federalize" medical malpractice law with a law that essentially shifts all the risk to you as the injured patient.

The end result will create a HUGE chilling effect on LEGITIMATE malpractice cases, and will cause many injured patients to simply give up over fear of shouldering a monstrous legal bill if they lose. And that's the irony of this legislation--they can leave a towel in you, and you might just be forced to "throw in the towel" against them.

Thursday, November 5, 2009

What Can You Expect If Your Personal Injury Case Goes To Mediation

Mediation as a method of resolving lawsuits has become as popular as LeBron James at a Nike shoe giveaway. In McDonald's like fashion, mediators and mediation programs are popping up all over the place. Judges are ordering parties to mediation earlier than ever after a lawsuit has been filed, and it is not umcommon for parties to a lawsuit to go through multiple mediations in an effort to avoid going to trial.

So what goes on at a mediation? Usually the parties and their attorneys meet in a room with a mediator. There may be some discussion of each party's view of the case, and, depending upon the case, there may be a presentation of sorts (like a PowerPoint or something similar). Then, the parties separate while the mediator talks to both sides separately and acts as a go between in trying to forge a compromise.

Mediation, generally speaking, is a useful alternate dispute resolution tool in settling cases. Some cases really need to be resolved for whatever reason. Sometimes one party to a lawsuit is being entirely unrealistic, and needs to hear about some of the consequences of being unreasonable in his or her position. What's more, sometimes the parties simply have a good faith dispute as to the value of an injury claim, and each are able to "give in" and reach a settlement, which avoids the uncertainty of trial. But mediation is not the "magic pill" as it has been portrayed by some, and definitely has its limitations.

First, some cases just need to be tried to a verdict. I'm tired of hearing from some legal experts, and a small minority of judges for that matter, who say that a trial a "failure" because the parties couldn't settle their differences and had to have a trial. That's like a parent saying to his kid: "I realize the bully has been pummeling you daily, but why haven't you been able to settle your differences with him?"

Sometimes you can't "compromise" with a bully. Occasionally the bully needs to be taken to the woodshed and taught a lesson. This is not a "failure;" it's called justice (It worked for me in junior high anyway in a baseball dugout after I got shelled on the mound as a pitcher and discovered that the bully had filled my high tops with dirt, the last straw in a long line of abuses that ended that day in that dugout...)

Second, it is amazing to me how insulting some insurance companies' initial offers at mediation can be. Going in to any mediation, I tell my clients two things: (1) be prepared to be insulted with the initial offer(s); and (2) be prepared to walk out with civility and politeness if and when it becomes clear that the insurance company is low balling or being unrealistic.

Wednesday, November 4, 2009

"Someone Was Injured On My Property"-- Are You Liable?

This is a frequently asked question. The common misconception is that you as a homeowner or landowner are automatically liable if another person is injured on your property. In fact, I've heard many people say: "If someone is injured on your property, you're liable for it." This, as a general rule, is not true. You as an Ohio homeowner or landowner are liable only if you are negligent.

Some examples might illustrate the point. If a guest or relative falls down your basement steps due to his or her inattentiveness, you are not liable--you did nothing wrong. Similarly, if a neighbor trips on your sidewalk, or on a log in plain view in your backyard, again, you would not be liable.

Here is the general rule in Ohio for your duties as a landowner: you owe a duty to warn of, or make safe, any hazard that you know of or should know of if you had exercised due diligence. Now let's take that standard and apply it to an example where a landowner would be negligent and therefore liable for injuries to a guest or invitee (a person on your land with permission).

Let's say you know of a rather large hole in your backyard that is hidden by overgrown grass. You know it's there because you cut the grass. But, over the course of time, you don't fill the hole, and you don't mark it as a hole or warn anyone of the hole. You or your kids invite some friends over and a guest promptly breaks his ankle while engaging in some backyard activity.

In this instance, your failure to warn of, or make safe, a hazard like a hidden hole would probably render you negligent under Ohio premises liability law. What is important to remember, however, is that every case is different, and there are no hard and fast rules here. Change a fact or two in any one of those examples and it could mean the difference between being liable for negligence or not. The key for any landowner is to use common sense and take reasonable efforts to maintain the safety of your property.

Tuesday, November 3, 2009

Can A Personal Injury Case Settle During Trial?

The short answer: Yes. Over the course of 21 years of trying cases to juries, I have settled a handful of cases during trial. One was a trucking case where a driver failed to set the brakes at a loading dock and injured a forklift or "tow motor" operator who was injured when the truck drifted while the tow motor operator was loading it. Another was a "premises liability" case where a tradesman fell through a set of temporary steps defectively built on a residential housing worksite. And yet another was a medical malpractice trial that had lasted two weeks.

In each case, the defendants initially denied responsibility for what happened. But once the trial gets underway, sometimes a key witness can give powerful testimony, or an opposing witness can perform poorly, or say something downright stupid. Sometimes opposing counsel will overstep his or her bounds and needlessly attack a witness or an expert. And sometimes the judge's ruling admitting or excluding a key piece of evidence will affect one side's ability to present their case. Any one of these things can cause a party to the lawsuit to re-elavuate and possibly change its negotiating position and make a new offer during trial and before the jury renders its decision.

To borrow a sports analogy, a case can gather momentum like a football team driving down the field into the red zone, and this is often the impetus for resolving the case during trial. One thing is certain about a settlement during trial: it produces finality, and eliminates the risk associated with a jury verdict, where there is only one winner and one loser.