Client Alerts

 

MEDICARE IN CRISIS

Medicare and the Secondary Payer Recovery Contractor are in crisis. Currently, we are holding thousands of dollars in our trust account pending Medicare’s Secondary Payer Recovery Contractor’s determination of final lien amounts. These funds, less Medicare’s required reimbursement, belong to our clients. Due to Medicare’s statutory lien, we are required to hold these funds in trust until Medicare determines how much it is owed. In some cases, our clients have been waiting for over a year to receive their money.

In 2000, we represented an individual for injuries sustained in a motor vehicle collision. Medicare was promptly reimbursed upon receipt of their final lien amount in 2003. In 2011, the individual’s Medicare benefits were stopped and demand was again made for repayment of the amount already paid eight years earlier! Despite submitting correspondence and the cancelled check to Medicare twice, we have yet to successfully resolve this issue. This is just one example of the problems our clients face when dealing with Medicare.

Chickasaw National Industries (CNI) was awarded the Medicare recovery contract in 2006. On September 30, 2009, the Subcommittee on Contracting Oversight, chaired by Senator Claire McCaskill, began an investigation of the contractor[1]. The results of that investigation revealed numerous “significant deficiencies”, including, but not limited to:

  • Failure to respond to communications in a timely manner;
  • Lack of internal controls:
    • Case Management
    • Accounting Problems
    • Debt Write-Offs
  • Insufficient funding (CNI alleges they were unable to comply with deadlines due to lack of funding)

Below is a link for more information regarding the subcommittee’s findings:
Click here to download PDF – 178kb

Although Medicare has recently implemented a $300 threshold for certain cases, it is of little or no value to our clients. In order to benefit from the new threshold, an individual would have to receive a lump sum settlement of $300 or less and meet additional criteria. As of September 9, 2011, none of our clients would benefit from Medicare’s new policy.

If you are a Medicare recipient and would like to check the status of your claim, you may do so by registering for online access to your account. The website address for this service is www.mymedicare.gov.

[1] Fact Sheet – New Information about the Medicare Secondary Payer Recovery Contractor, Senator Claire McCaskill, Chairman, Subcommittee on Contracting Oversight

CONVENTIONAL WISDOM

Conventional wisdom has played a part in the law in several ways; it has shaped the way that laws have been created, the way that judges rule in cases, and the way that juries decide verdicts.

Most of what is regarded as the law originated in some form from the common law of England. The common law codified what is largely known as conventional wisdom. Conventional wisdom is defined by what most members of society would hold as being true. An example of conventional wisdom is that it is generally wrong to take something that belongs to someone else. Since many of the laws that we are bound by today originated in some form from conventional wisdom, we are all bound by rules that most people believe that we should be bound.

Laws rooted in conventional wisdom work because most people feel that laws such as these should be in place. Conventional wisdom in the law gives members of society comfort in knowing that not only will people do what they are expected to do, but that the law requires it.

Conventional wisdom works well in areas where the answer is what a responsible member of society should have done in a given situation. And, if a person does not do so, the law is in place to hold that person responsible. This requires that the offense of the individual be weighed against the severity of the corrective measures taken by the law. Problems arise where the answer is not so readily apparent. Take for instance vagrancy laws. Most people would generally agree that panhandling should not be allowed outside of stores. However, most people would agree that placing a panhandler in prison would be an unreasonable punishment.

Conventional wisdom is a product of the society in which we live. Accordingly, it changes as society changes. What may have been conventional wisdom 50 years ago may not be conventional wisdom today. Laws that may have been rooted in conventional wisdom may seem archaic and outdated when considered by the young. An example of such would be contract law. Courts initially would not interfere with parties and the contracts that they agreed to enter. The reasoning behind this was that the law should not interfere with what adults have entered into. Over time this changed; most members of society now agree that there are certain contracts that certain people should not be able to enter into, such as contracts entered into by the mentally ill. A more recent example would be the government’s requirement that banks and credit card companies no longer charge overdraft fees unless they have provided their customers with notice, and received consent. This followed the general belief by society that automatically charging overdraft fees to customers without their consent was wrong.

Conventional wisdom has led to the modification of the law in several notable ways. Take for instance the right to bear arms. The Second Amendment grants the right to bear arms to any citizen of the United States. This right has been limited, largely in part, because of society’s changing views of who should have the right to bear arms. Conventional wisdom at one time was in agreement with the Second Amendment exactly as it was written. That view has changed because society now recognizes that there are certain persons who should not have the right to bear arms, such as convicted felons or children, and the law has adjusted to meet those changing views.

Conventional wisdom and the law should seek to be in agreement or the laws will not be followed. Society takes comfort in knowing that no law should be put into place that is arbitrary, and that all laws should find their basis in conventional wisdom.

The beauty of conventional wisdom is that it is always growing and evolving with the demands of society. As the attitudes of people change, so does conventional wisdom. As conventional wisdom evolves, so does the law. In this way, the law may govern the people, but the people shape the laws.

RALPH NADER: SELLING OUT INJURED BABY RIGHTS

From Independent Political Report

Ralph Nader at Nader.org:

New York State’s Governor Andrew Cuomo will be judged harshly by history if he doesn’t reverse his position supporting limiting the legal rights of brain damaged babies. Imagine a life-time $250,000 cap on pain and suffering and families having to endure a burdensome and humiliating struggle to get medical bills paid as they arise from an insurance funded entity.

Governor Cuomo is hiding behind the recommendations of his Medicaid Redesign Team, which has more than a sprinkling of hospital and industry lobbyists, and which was the stalking horse for this heartless proposal.

Why you might ask would Andrew Cuomo, the son of Mario Cuomo, a man widely regarded as a champion of the underdog, advance such a mean-spirited and wrong-headed measure?

The short answer: political expediency. Credible observers say Governor Cuomo needs to give the health insurance industry a financial benefit in exchange for the health insurance industry not economically punishing hospitals workers. And to top it off with a touch that would make Machiavelli proud, the Governor placed this initiative in his budget proposal. This means that for the New York State Assembly and Senate to vote against this draconian measure used to seal a political deal, the legislators would have to vote down the entire state budget.

It is shameful that the Governor would use his creativity and intellect to help the health industry at the expense of helpless babies who are victims of medical malpractice.

Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct.

Governor Cuomo needs to review the facts on medical malpractice. First he should know that supporters of tort “deform” invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false. Only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do receive large verdicts. Limiting victims’ rights is an anti-democratic solution to a trumped-up problem.

Second, a driving force behind this dishonest campaign is the insurance industry. Whenever, over the years, insurers face low interest rates and declining stock investments, they start the drumbeat against justice for victims. They’ve made a particular cause against liabilities for medical malpractice. Instead of demanding disciplinary action against incompetent physicians, urging medical associations to police their own ranks, the insurance industry lobbies state and federal legislatures to curtail victims’ rights and remedies in courts of law. At the insurance industry’s behest, their physician policyholders have joined the call.

Why do physicians allow themselves to be tools of insurance companies that gouge them especially when they are not among the incompetent few who account for most malpractice claims (five percent of doctors are involved in roughly 50 percent of malpractice payouts)? One answer is that insurance companies frighten physicians with false data suggesting that malpractice suits run amok. A persuasive case can be made that there are far too few malpractice suits. The 1999 Institute of Medicine study estimated that gross malpractice in hospitals alone takes up to 98,000 American lives a year and causes hundreds of thousands of serious injuries. Yet various studies show that roughly 90% of people harmed by medical malpractice do not even file suit.

If you total the entire amount of premiums physicians pay in a year for their malpractice insurance and divide it evenly by all the physicians practicing in the United States, the average annual premium is less than $10,000 per doctor. Very manageable. So why are some doctors paying $50,000 or $100,000 a year to their malpractice insurers? Because the profit hungry companies have learned to over-classify their risk pools, thereby charging exorbitant amounts to specific specialists like obstetricians and orthopedic surgeons. In addition, because insurers fail to surcharge the few incompetent physicians in these specialties, the competent specialists pay for more than they should.

There is another benefit to the insurance industry from this kind of over-classification. When obstetricians are gouged, they protest loudly, threaten not to deliver babies, and sometimes actually go on strike. This makes great television — crying babies and physicians in their garb blaming lawyers – and deflects blame from the insurers, who laugh their way to the bank. In recent years, their profits have soared.

Neither organized medicine nor the insurance companies go after bad doctors. The AMA’s web site does not report any data about incompetent or crooked physicians, and the insurance companies have shown little interest in loss prevention. Instead, both physicians’ and insurers’ lobbies fund and press legislators to enact laws that politicize the courts, tie the hands of judges and juries, and make it harder for innocent people or children to receive just compensation for their tragic suffering.

Isn’t it time to focus on malpractice prevention instead of trying to hamstring hundreds of thousands of Americans harmed by their doctors’ negligence? Are malpractice awards the national crisis physicians and insurers suggest? In fact, the entire medical malpractice insurance industry payout to victims in verdicts and settlements is about $5 billion a year (substantially less than the amount our the country spends on dog food). Isn’t it time to focus on malpractice prevention instead of trying to restrict the rights of hundreds of thousands of Americans harmed by their doctors’ negligence?

We need to ask whether proposed reforms level the playing field or tilt an already un-level field even further by making it more difficult for wrongfully injured citizens to receive justice from the perpetrators of their harms.

The tort deform movement amounts to a perverse rewriting of history. Tort law produced decades of slow but steady progress in state after state respecting the physical integrity of human beings against harm by recognizing that even the weak and defenseless deserve justice. Instead of seeing this evolution as a source of national pride, a coalition of insurance companies, corporate defense lobbies, and craven politicians depict it as an accountability that must be stripped.

If this campaign succeeds, the results are sadly predictable. Tort deform means less deterrence, which means more injuries, more uncompensated victims, and tremendous overall costs transferred to society.

Send the governor a letter and remind him an important part of being a leader is defending the defenseless. His address is:

The Honorable Andrew M. Cuomo of New York State

York State Capitol Building

Albany, NY 12224

HANGING PLACARDS FOR SAFE DRIVING

Dear Friend:

I designed this hanging placard just in case there is someone in your life who might benefit from having it as a reminder! If you would like us to mail you one, just let us know.

ALERT: Do not use this placard as a hanger from your rearview mirror! It could obstruct your vision and cause injury; it is also illegal in some jurisdictions to drive with any placard hanging from the rearview mirror. 

Sincerely,
Gary Green
gary.green@gGreen.com

PlacardSM

VEHICLE INSURANCE

Most of us don’t even look at our vehicle insurance policy until it is too late. Remember, you cannot rely on the at-fault party’s insurance to cover all expenses right away. Even when a collision is the fault of someone else, that person may not have insurance, or delays in the claims process may result in significant out of pocket expenses until the claim is settled.

RENTAL CAR COVERAGE

What do you do when there is a wreck that damages your vehicle and requires repairs? How does you get around until your vehicle can be fixed or replaced?

Many insurance companies will offer coverage to pay for a rental car while their insured’s is in the shop. Many times consumers will ask their insurance agent to provide them with rental car coverage, only to find out when they need it that the standard coverage is too low to cover the expense of a rental car. Many policies will set the coverage as a specified sum, such as $15.00 per day—less than half of what it costs to rent a car. Check your policy to ensure you have adequate coverage, or that you are not paying too much for the little coverage provided.

ARBITRATION AND APPRAISAL CLAUSES

A disturbing trend has emerged in the insurance industry in that most policies now include provisions for mandatory arbitration or appraisal should any dispute arise between the policy holder and the insurance company. If your policy contains an arbitration clause, it will usually state that if there is a disagreement between you and your insurance company over whether the company should pay your loss or over the amount of the loss, the dispute will be submitted to an arbitrator, and the arbitrator’s decision will be binding—meaning that you have lost your rights to have the dispute decided in a court of law.

Because these clauses limit the consumer’s access to the judicial system, some states have declared that these clauses violate public policy, and the arbitration clauses will not be enforced. An appraisal clause is similar to the arbitration clause, but is limited to disputes over the amount of the loss to be paid. Typically, if you do not agree with the insurance company’s offer, an appraiser must be hired by the consumer, and the insurance company and the consumer split the cost of a referee. Regardless, your right to judicial determination is lost. We encourage anyone who has either an arbitration or appraisal clause in their policy to check the laws of their state to determine the legality of such clauses. If your state law allows the use of these clauses, we would encourage you to change companies, if necessary, to obtain a policy which protects your access to the courts.

CRS – CHILD RESTRAINT SYSTEMS

There are far too many wrecks in which adults involved walk away, while infants restrained in child safety seats are seriously injured.

Child safety seat changes and auto industry changes in the way the seats are installed have not meshed. There are hundreds of injuries every year from CRS’s being negligently manufactured or installed in cars not designed to accept them safely.

A recent survey found that 80% of CRS’s are installed incorrectly, and it is not the parents’ fault! There are now seven major types of seatbelts, countless child-seat styles and many seatbelt systems now require special modifications to ensure safety.

Most specifications for seat belt/CRS safety hail from when bench seats were used, and the seat belt anchors were located at the rear of the seat bight (crack in the seat). Seat belt anchors in today’s cars are rarely behind the seat bight, and more commonly are located on a stalk or otherwise situated significantly forward of the bight. It has been established since the early 80s that seat belt anchors forward of the seat bight create a compatibility problem between child restraints and automobiles.

CRS manufacturers typically do not warn of which autos their systems are not compatible. The manufacturers of these products have known for years that their products do not fit in many cars in which they will be used, but have failed to take responsibility to see that children are not injured and killed by their unsafe products.

There should have been some tremendous strides made in the last few years in fixing this long-standing compatibility problem between child restraints and automobiles. Child restraints made after September 1998 have to have certain safety features that they did not generally have before, such as a lower anchorage system that could be clipped into anchors in automobiles – so the CRS is secured at the bottom tightly against the seat without using the auto seat belt. The CRS head excursion limit was reduced by 3 and 1/2 inches, and all CRS manufacturers complied by installing a tether on the top of the restraint that hooks to the back of the auto seat. But the attachment hardware to hook up these new CRS features in vehicles has been phased in, and it is just this year that new car models are required to have a lower anchorage attachment and an attachment to secure a child restraint tether on top. In the meantime, there will be many years to come of injuries to children from child restraints in automobiles made prior to this point in time. The manufacturers are leaving the old restraints on the market and not recalling them due to their failure to comply with current safety standards!

If your child is injured or killed in a child restraint that you believe was used properly, there is a good chance that you are not to blame, and that the product itself is primarily to blame for what happened.

ATV/AUTO/HOMEOWNER POLICIES

Most homeowner policies specifically exclude ATVs, as do some auto policies. We highly recommend that ATV owners buy a separate $100,000.00 liability policy to get up to the minimum umbrella floor for most umbrella policies.

POLICE, FIREFIGHTER, MILITARY, EMS AND TEACHER DISCOUNTS

On personal injury cases we are happy to offer a fee discount to police, firefighters, military and EMS personnel and teachers. The fee discount is 10% of any normally charged fee. For example, in cases and situations where the fee normally would be 25%, the fee is reduced to 22.5%. We regret we cannot extend this fee discount program to medical negligence, nursing home or product liability cases.

CELL PHONE AND TEXTING LAW BY STATE

In January, 2010 the National Safety Counsel released a statement estimating the at least 1.6 million (28%) of crashes per year involve the use of a cell phone.

Only 9 states, Washington D.C. and the Virgin Islands prohibit all drivers from using handheld cell phones while driving. 30 states and Washington D.C. ban all cell phone use by inexperienced drivers. 34 states, Washington D.C. and Guam ban text messaging for all drivers. Maine, New Hampshire and Utah consider cell phone use and texting part of the “distracted driver” issue. Many states have begun to record cell phone use data on accident report forms.

Arkansas*:

Handheld Ban: 18-20 years old

All Cell Phone Ban: School bus drivers and all drivers under the age of 18

Text Messaging Ban: All drivers

*Effective October 1, 2011, Arkansas also bans the use of handheld cell phones while driving in a school zone or a highway construction area.

Missouri:

Handheld Ban: None

All Cell Phone Ban: None

Text Messaging Ban: Drivers under the age of 21

Tennessee:

Handheld Ban: None

All Cell Phone Ban: School bus drivers and those carrying a learner or intermediate license

Text Messaging Ban: All Drivers

Texas:

Handheld Ban: None

All Cell Phone Ban: School bus drivers with passengers under the age of 17

Text Messaging Ban: School bus drivers with passengers under the age of 17 and the first 12 months for any individual carrying an intermediate license

Oklahoma:

Handheld Ban: Learner or intermediate license and school bus drivers

All Cell Phone Ban: None

Text Messaging Ban: School bus drivers and learner or intermediate license

For a list of cell phone laws in all states, please click on the following link:

http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html