Wednesday, January 20, 2010

More Corporate Lawsuit Abuse: North Face Sues Tiny "South Butt" Clothing Line (I'm Not Making This Up)

Most of us cold climate folks have heard of the North Face Clothing line. Recently a biomedical student started a small clothing line in his spare time that parodied the North Face name. Proving that he had a sense of humor, he named his line "South Butt."

Big conglomerate North Face Clothing? Meet tiny, one man show "South Butt" clothing line. Tiny South Butt, meet North Face's team of lawyers and a lawsuit. North Face is suing the student for copyright infringment and other legal harms.

Experts interviewed in the article predicted that the lawsuit will probably go nowhere. In fact, it's likely to backfire. Not only does this frivolous lawsuit make North Face look petty and paranoid, it will probably result in more "South Butt" sales.

The irony here is that corporate America complains all the time about "frivolous lawsuits" that drive up the cost of goods. This lawsuit shows that corporations often file their own ill founded lawsuits and don't hseitate to hire their legions of lawyers to throw their weight around. So where's The Chamber Of Commerce on this laugher of a lawsuit? Why aren't they rushing in to defend this student like they did when the dry cleaner in Washington D.C. was sued for $54 million by a malcontent customer whose pants were lost (an equally stupid lawsuit)?

I could never pull the trigger on North Face clothes--a little to expensive for my tastes. This is an even better reason not to buy their line. Good luck, South Butt dude. Although apparently opposites do attract, here, in the form of a lawsuit, I hope NF gets some sense and drops this suit.

Thursday, January 14, 2010

Correction: Ohio's Medical "Tort Reform" Does Not Apply To Medical Malpractice Wrongful Death Cases

Recently a colleague of mine pointed out an error in my past blog posts discussing Ohio's "caps" or limits on what Ohio medical malpractice victims can recover in lawsuits. In those previous posts, I pointed out that the Ohio Legislature in 2003 passed laws limiting malpractice victims' recovery to arbitrary caps of anywhere from $250,000 to $350,000.

She said to me: "You forgot to mention that there are no caps or limits in cases of wrongful death." And she's right. The reason for this is that Section 19a, Article I of The Ohio Constitution states that damages recoverable in wrongful death claims
cannot be limited. Since The Ohio Constitution trumps any attempt by the Legislature to contradict it, The Legislature could not pass any caps in wrongful death cases.

So there you have it. I'm just glad someone was actually reading some of this stuff and paying attention.

Sunday, January 10, 2010

Do We Need Any MORE PROOF That Medical Tort Reform Will Not Lower Health Care Costs? (But Here's More Proof Anyway...)

As I have said repeatedly, passing medical malpractice tort reform will do nothing to lower the spiraling costs of Ohioans' health care premuims. Two recent articles prove (again) how bogus this argument is.

The first is a December 17, 2009 internet article entitled "Medical Mutual Of Ohio's View Of Healthcare Reform, authored by George Stadtlander, its Chief Managed Care Officer. The article discusses the pros and cons of the current proposals in Congress, but this little ditty really caused me to rise out of my chair:

Another huge issue in this debate is tort reform. There have been proposals for comprehensive tort reform that would reduce the cost of delivery, but they have been widely ignored.

Really? What this article and Mr. Stadtlander did NOT mention is that we have had medical "tort reform" in Ohio now for over six years! Since 2003, there have been arbitrary caps or limits on what injured Ohioans can recover due to negligent medical mistakes. These caps range anywhere from $250,000 to $350,000 depending upon the circumstances. Essentially, your rights were sold as a way to keep healthcare costs down. In other words, limiting your rights in lawsuits was good for you and all Ohioans because you would pay less for health insurance. Sounds all well and good, right?

So, the question becomes: have these "reforms" worked to lower our insurance premuims? Interestingly, just one month before this article, The Canton Repository reported in a comprehensive piece that local businesses are being hammered with soaring healthcare costs.

Curiously, Medical Mutual has increased premuims 12-13%, according to Mr. Stadtlander, who was quoted in the Repository article:


Employees filing a greater number of costly claims in recent years is the reason some employers are seeing massive increases in premiums, said George Stadtlander, executive vice president for Medical Mutual.

Stadtlander said Medical Mutual has raised rates by an average of 12 to 13 percent — by as little as 5 percent and as much as 30 percent.

The health insurer executive said the economy could be playing a role. Many employees who have been laid off are younger, less senior workers who are healthier and file fewer claims. Those who remain are often older Baby Boomers more likely to get medical treatment.

Also, federal stimulus spending may be playing a role. The federal government is paying 65 percent of premiums under COBRA, the mandate that permits people who have been laid off to stay on employer group health plans for at least 18 months, normally at the laid-off workers’ expense. Stadtlander says those with medical problems are the ones that tend to sign up for COBRA.

And the swine flu has driven more people to doctor’s offices and hospitals and pushed up demand for prescription drugs, resulting in a higher number of claims, Stadtlander said.

AultCare has a different explanation. The Canton insurer’s spokeswoman, Robin Clark, blames not more claims, but rather the general inflation of health care costs.

She said AultCare has kept rate increases to well below 10 percent this year for the bulk of its policyholders, especially since medical providers in its local network charge less than providers in larger communities.

But Clark said small employers are more likely to see rates rise due to an expensive claim filed by one employee, because the impact of a single worker’s claim is magnified in a smaller pool.

One final reason, according to Stadtlander, is advances in extremely costly medical technology. Its greater availability is leading to more catastrophic claims of more than $250,000, he said.

“A lung transplant is an expensive procedure,” he said.

The economy? The stimulus? Swine flu? Technology? Lung transplants? Aliens? (OK, I added that one). In other words, insurance companies can come up with any reasons they want to continue to increase premuims. And when they lobby for laws limiting the rights of Ohioans and continue to claim that these laws will bring down insurance premiums, we now have proof that it is a sham.

Yet, a majority of Americans favor "medical malpractice reform," and the paradoxical limiting of their own legal rights at rallies and town hall meetings. Perhaps someday they'll eventually wake up and realize that laws limiting their legal redress when a hospital has left a sponge or a towel inside them are potentially as noxious as limiting their Second Amendment right to carry a gun.

Wednesday, January 6, 2010

Is There A Formula For Settling A Personal Injury Case?

In short, no. Occasionally, clients will ask: "I've heard that insurance companies will take your medical bills and multiply them by three to make their offer--is this true?"

Perhaps 15 or 20 years ago, this was not uncommon in our experience, although not an ironclad rule. However, times have changed. First, as jury verdicts started to trend downward in the mid-90's and beyond, this "rule" started to disappear. Second, many insurance companies invested millions for fancy computer modeling programs designed to ratchet down claim evaluations. Allstate, for example, invested multi-millions for a program known as "Colussus," which inputs "data" regarding an accident victim's injuries and bills, etc, and spits out an offer, frequently more pinched than a traditional "3 times" multiplier. Some people would characterize this as "garbage in, garbage out," but the point is that any rigid formula or equation for evaluating injury claims frequently doesn't hold water.

Here's why. There is a saying in our profession: each case sits on its bottom, so to speak. Two examples may help illustrate the point.

Example No 1: Two people suffer identical injuries in a collision--multiple fractures of both hands. One victim is a sales manager who works mainly at his desk. Despite his injuries, he's able to do his job. The other victim is a concert pianist for the local symphony and also gives private lessons. She is not only unable to perform in concerts and teach, but loses her job and substantial income.
Same injuries, but with different outcomes. Guess who has a more substantial claim? A rigid "formula" does not do justice to the pianist's claim versus the sales manager's.

Example No. 2: Again, two people suffer the same injuries in a collision--an odontoid fracture of the 2nd cervical vertebrae. The first victim was hit by a nice elderly lady coming home from church who slid thorugh a stop sign. The second was hit by a drunk driver who blew the stop sign at 68 MPH and blew a .225, over three times the legal limit of .08.

Same injuries, same amount of bills, same recovery. Guess who's claim is worth more? I can assure you that the claim against the drunk driver is potentially more valuable due to the egregious conduct of the drunk, which subjects him to possible punitive damages (money damages returned by a jury to punish a person for their reckless conduct).

There are numerous other examples of why simple formulas don't work. The only generalization is that each claim must be evaluated based upon its own unique facts and circumstances, and not on what Uncle Joe or the neighbor down the street received for their claim a few years ago.

Tuesday, January 5, 2010

New Website: How Does Your Hospital Rate?

Finally, Ohio has come out of the stone age. A new website launched by The Ohio Department Of Health will allow Ohioans to compare hospitals on a whole host of performance measures. For example, you can research hospitals' performance on a number of pateint safety measures like anesthesia complications, bed sores, and number of foreign objects left in patients during a procedure, just to name a few.

This is part of a nationwide movement to make a hospital's performance criteria transparent. Hospitals are required to submit data every six months or face a fine.

Of course, this data is dependent upon a hospital's willingness to keep accurate statistics and voluntarily report outcomes that might not necessarily paint them in a good light. But it is a vast improvement over data that Ohio consumers have had access to before--which is nothing.

Hospitals spend millions on PR ad campaigns touting the quality of care they provide. Now, at least, there is some criteria to measure against all the hype and feel good TV and radio commercials.

By the way, in 2008 The Cleveland Clinic left four foreign objects in patients during surgery. This doesn't make them a bad hospital--in fact, just the opposite is true. But it does show that even hospitals that provide "world class care" are capable of making preventable medical mistakes.

Monday, January 4, 2010

36,000 Reasons Why You Need As Much Uninsured Motorists' Coverage As You Can Afford

36,000 drunk drivers in Ohio. This figure does NOT represent the number of drunk drivers in Ohio in 2009. Here's the real jaw dropper: it represents the number of Ohioans with at least 5 DUI convictions since 1973!!! Recently, the Ohio Legislature passed a law to publish a public database of these drivers, only to realize that less than 1% of these drivers have made the list.

This figure is mind boggling to say the least. It illustrates, sadly, how serious of a societal problem drunk driving is. Now take this issue one step further and ask yourself: how many of these irresponsible people are carrying auto insurance to cover your injuries if you're hit by one of them? I can tell you from over twenty years of experience that the answer is: hardly any. Aren't they required by law to have insurance? Of course, but there are also laws against driving drunk as well and obviously these folks are ignoring it! Sadly, there are also ways around the mandatory insurance laws (like dropping coverage as soon as they purchase it).

The only way you can protect yourself and your family is to buy as much "uninsured motorists' coverage" as you can afford to buy. This coverage protects you if you get hit by a drunk driver that has either no coverage, or not enough to compensate you for your injuries. Our FREE book, "How To Buy Auto Insurance In Ohio," explains what you need to buy and how much you need to protect yourself. And you'd be suprised how cheap it is to really upgrade your policy.

Taking steps now to protect yourself will help you avoid financial disaster if you are on the unfortunate end of this situation. Given the staggering numbers of repeat offenders lurking on our roads, meeting up with a drunk driver in Ohio is more than just a remote possibility...

Sunday, January 3, 2010

Are Your Child's "Pranks Gone Bad" Covered By Your Insurance?

This case should serve as a warning to all you parents out there: your child's stupid pranks may subject you as parents to personal liability. In a recent Ohio case, some dimwitted high school students stole a target deer and spray painted it with profanities and the words "hit me." It gets worse. They decided to place the deer in the middle of a two lane rural road at the crest of a hill to see what would happen.

Sure enough, a car crested the hill, spotted the "deer," swerved to miss it...and ran the car into a nearby field. The driver and occupant sustained serious injuries. They sued the boys and their parents. The insurance company for the parents filed suit seeking a legal determination that the parents' homeowners policy did not provide liability coverage for the boys' actions or the parents because of an "intentional act" exclusion in the policy. Translated: if the boys as "insureds" under the policy were engaged in an "intentional act" due to their shenanigans with the deer, there was no coverage.

The court of appeals concluded that although the boys' actions in stealing and placing the deer in the roadway were intentional, "the disputed issue here is whether they also intended harm or injury to follow from their intentional act." Now a jury will decide this issue.

This was a close call and the Court's well reasoned decision was based in part on the language of the "intentional act" exclusion. If the policy were worded slightly differently, the Court may have concluded that the exclusion applied, meaning that the boys, and possibly their parents, would be personally liable to the injured occupants of the car.

So here's the take away from all this: remind your kids of this case and use it to educate them of the dangers of a juvenile prank gone bad. And let them know if they do something like this, you as parents could be personally liable for their stupidity.