Personal Injury and Social Security Disability Blog

Best Halloween Costumes?

Happy Halloween everyone! These guys wearing flat-screen displays attached to their iPhones have my favorite costumes of the year. 

Friday Fun

I love the Redneck Remedies at There, I Fixed It. Maybe you had to grow up in Texas or in the South to get the full effect, but these photos are definitely worth a look.

Medical Malpractice Insurers: Time to End Their License to Gouge

Here's an interesting opinion about one reason medical malpractice insurance premiums are so high. This is from a contributor to the Huffington Post:

In 1945, Congress gave the massively powerful insurance industry an astonishing gift. It bestowed on them the freedom to do what would be illegal in every other industry (save, strangely, Major League Baseball) -- fix-prices, collude and practice anti-competitive behavior. Now there's a movement afoot to repeal this extraordinary law, called the McCarran-Ferguson Act, which Senate Majority Leader Harry Reid (D-NV) testified recently, "has been damaging to the American economy."

All this begs an important question, though -- did no one notice before? Was this extraordinary privilege, granted over 60 years ago, buried in an obscure volume of the federal code that we are just now discovering? Well, no. Actually, consumer advocates have been noticing it for a long time. Clearly, it's taken the movement to reform health care to finally put it on people's radar. But the lack of notice until now hasn't been for lack of trying.

Laws to repeal this anti-trust exemption have been introduced in every Congress for many years. The industry has fought back every time and nothing was ever really accomplished -- until now. Now that affordable health insurance has become the driving force behind repeal of this law, it's getting somewhere. Bills exist in both Houses of Congress and are beginning to be reported out of committee faster than you can say "price-fix."

But the McCarran-Ferguson Act covers a few different sectors of the insurance industry, and health is just one of them. Another significant sector is property/casualty. That's the sector that covers all liability insurance -- your auto insurance, homeowners policies, and commercial lines, as well. The insurance that doctors purchase to cover medical malpractice is part of this property/casualty sector.

For years now, doctors have been screaming about their medical malpractice insurance rates. But organized medicine and insurance executives always blame everyone else for charging doctors' exorbitant rates. They especially like to point the finger at judges, juries, and injured patients, blaming them for insurers' decisions to raise rates even though claims and payouts have dropped like a rock over the last several years. That doesn't seem to matter. They still tell lawmakers that the only way to bring rates under control is to strip away patients' rights to go to court.

We are hearing about that now, as the push for so-called "tort reform" has become part of the health care discussion. Sick and injured patients, after all, are the perfect insurance industry scapegoats. Even President Obama is talking about it, directing HHS to set up a panel to explore "tort reform" ideas, which met for the first time on October 26. But consumer advocates have always known that limiting the legal rights of patients is no answer, and that the insurance industry itself is responsible for the price-gouging of doctors. The anti-trust exemption, which leads to skyrocketing rates and profiteering within the property/casualty insurance sector, allows this to happen.

It's fascinating to watch the insurance industry try to justify 60 years of anti-competitive behavior. The medical malpractice insurers are doing their best, that's for sure. They want medical malpractice "removed from the bill," according to insurance lobbyist Larry Smarr, president of the Physician Insurers Association of America, who testified that "market conduct abuses" never happen in the medical liability industry, and that repealing the most anti-competitive law in the nation would, in his words, "undermine competition."

Whatever their tactic and latest form of utterly absurd double speak, it's crucial that when Congress does repeal the McCarran-Ferguson Act, the medical malpractice industry is not left out. The Consumer Federation of America predicts that repealing this law for medical malpractice insurers could result in a 20 percent insurance savings for doctors.

Let's finally see what happens once the industry is prevented from colluding and price-fixing, once insurer-supported "rate bureaus" that tell insurers what rates to charge are outlawed, and when the pressure to take away the right of injured patients is diminished. Maybe, finally, people will understand that it's not only unfair, but also ineffective, to try to reform insurance abuses on the backs of malpractice victims. When it comes to real health care reform, that seems like a good place to start.

Tort Reform Is Not The Answer

Tort reform is not the answer — that's the headline of an editorial in the Des Moines Register. The editorial lays out the arguments in favor of tort reform as a way to save money on health care, but comes to this conclusion:

The truth is some Americans are injured by health-care workers. They contract infections when hospital workers don't wash their hands. They have the wrong foot removed in an amputation. They are victims of botched surgeries and negligent practitioners and preventable medical errors.

These Americans have a right to pursue their complaints in the U.S. court system. Doctors do not deserve special protections from Congress in the event of such complaints.

New AAJ Report On Corporations Failing to Protect Consumers from Faulty Products

This press release is from the American Association for Justice:

Today, as the U.S. Chamber celebrates their annual "legal reform summit" - an event dedicated to blaming lawsuits and trial lawyers for all of our country's ills, the American Association for Justice has released a report entitled “They Knew and Failed To,” detailing numerous examples of medical devices, prescription drugs, and other consumer products that remained on the market after critical safety concerns had been raised within the company.

One example details police officer Tony Zeppetella’s bullet proof vest that he had paid $313 to upgrade from his standard-issue vest.

Second Chance, the manufacturer of the vest, had known as early as 1998 that heat and sunlight caused the material to degrade, making the vests penetrable. “They Knew and Failed To” shows where internal corporate memos from 2001 revealed an executive at the company had recommended notifying customers about the products’ defect, saying, “Lives and our credibility are at stake.” It was not until years later the company acted to protect the public.

In September 2003, the company eventually recalled 130,000 vests, three months after Zeppetella was shot and killed. The company had known for five years there were problems with their vests, but failed to notify consumers, putting law enforcement and service members’ lives at risk. Several years later, Second Chance recalled another 98,000 vests. This is just one of many examples that show corporations knew their products were dangerous, yet failed to act and protect consumers.

While we know most businesses act in good faith to serve consumers, unfortunately some corporations recklessly put lives at risk for the sake of profit. The civil justice system acts as a check so manufacturers make sure their products are safe. Without a robust civil justice system, manufacturers have little incentive to make safe products and fix or recall ones they know are harmful. Manufacturers need to be held accountable for their misconduct.

In an added twist of irony, on Monday, the U.S. Chamber of Commerce announced it would sue a group of activists who tried last week to impersonate their organization. As detailed in The Hill newspaper, the Chamber “demands trial by jury,” in their complaint, the same system which they have worked tirelessly to undermine.

While we feel all people should have access to the civil justice system, the Chamber's stance is especially hypocritical. The Chamber spends millions of dollars working to protect its corporate financiers - bailed-out banks, polluters, and insurance companies - from being held accountable for their negligence. And the Chamber’s “legal reform summit” practically celebrates corporate misconduct and touts eliminating civil justice remedies to pad corporate balance sheets.

Yet the Chamber has no problem using that very same legal system when it advances its own agenda. According to Roll Call, Lisa Rickard, president of the chamber’s Institute for Legal Reform, said some lawsuits are necessary, “We agree that when an organization is impersonated and lies are told in their name, a lawsuit should go forward,” Rickard said in a statement.

I wonder if that applies when a consumer has been injured or even killed by a hazardous product that a company knew was dangerous?  Shouldn’t that lawsuit also go forward?

See www.justice.org/clips/TheyKnewAndFailedTo.pdf.  for a copy of the full report.

Nearly 1 Million Window Blinds Recalled for Strangulation Risk

As reported in the Chicago Tribune, nearly 1 million roller blinds and Roman shades sold by IKEA, Bed, Bath & Beyond, and Hanover Direct were recalled this week because they pose a serious strangulation risk to small children. More detailed information is available from the Consumer Products Safety Commission, but here are excerpts from the newspaper article:

The recall includes about 533,000 ISDANS, TUPPLUR and ENJE roller blinds manufactured in Taiwan and France and sold by IKEA Home Furnishings of Conshohocken, Pa. between July 2005 and July 2009.

IKEA previously recalled blinds in August, as well as in November 2008, following the death of a child. No incidents involving IKEA blinds were reported in this recall.

IKEA says owners of the blinds should check to make sure the tension device is properly installed. If not, they can call 888-966-4532 or visit an IKEA store for a free repair kit. The kits will be available the second week of November.

The recall also includes about 364,000 Chinese-made Dublin Energy Solution Roman shades imported by Louis Hornick & Co. Inc. of New York, N.Y., and sold exclusively by Bed Bath& Beyond between August 2007 and September 2009.

Two children became entangled in the inner cord of these shades. One, a 3-year-old boy, managed to free himself. The other, a 20-month-old boy, was rescued from the cord by his grandfather. Neither child received permanent injuries.

Blind owners should contact Louis Hornick & Co. at 800-517-3612 for a free repair kit, which will be available by the end of November.

The recall also includes about 90,000 Chinese-made faux suede Roman shades imported and sold by Hanover Direct Inc. of Weehawken, N.J. , which is also known as Domestications. The shades were sold through the company's Web site and catalog between January 2004 and December 2008.

A two-year-old boy was became tangled in the inner cord of these shades, and was freed by his parents without receiving permanent injuries.

For a free repair kit, call 800-524-0597.

Wounded Troops Face Too Much Bureaucracy

In a speech this week Defense Secretary Robert Gates gave his opinion that troops injured in combat in Iraq and Afghanistan continue to face too many bureaucratic hurdles. This is true of course, but applies equally to all veterans applying for medical care and disability benefits, and not only to those who have served in Iraq and Afghanistan. The federal government should be bending over backward to help these veterans, but often seems to be more interested in delaying the process.

The VA has a backlogged disability claims system with hundreds of thousands of claims that need to be processed. The current system is failing our veterans, and must be streamlined, especially because we're seeing more and more claims coming from our current two wars. Fortunately, the troops fighting in Afghanistan and in Iraq are surviving battle wounds at a higher rate than in previous wars, but the injuries they return with are more serious than in the past. A recent RAND Corporation study estimated that there could be more than 600,000 service members with traumatic brain injuries or mental health issues.

The government is aware of the problems in the VA system and seems to be making a good faith effort to improve the system. But we have a long way to go before we can show proper respect to our veterans.

FDA Fails to Withdraw Unproven Drugs

Did you know that the Food and Drug Administration has never pulled a drug off the market simply because the drug doesn't provide the benefits the manufacturer claimed it would? I have to admit I didn't know that either, until I read an Associated Press article about an upcoming report from the Government Accountability Office. That's just shocking. The most common situation is that the drug manufacturer never provides follow-up information to the FDA to prove the effectiveness of the drug. But even in situations where a later study showed the drug did not provide benefits, the FDA has allowed the drug to remain on the market. Here are excerpts from the article:

The Food and Drug Administration has allowed drugs for cancer and other diseases to stay on the market even when follow-up studies showed they didn't extend patients' lives, say congressional investigators.

A report due out Monday from the Government Accountability Office also shows that the FDA has never pulled a drug off the market due to a lack of required follow-up about its actual benefits — even when such information is more than a decade overdue.

When pressed about that policy, agency officials said they have no plans to get more aggressive.

The GAO says the FDA should do more to track whether drugs approved based on preliminary results actually have lived up to their promise.

"FDA has fallen far short of where it should be for patient safety," said Sen. Charles Grassley, R-Iowa, who requested the investigation.

Of the 144 studies the FDA has required under the program since 1992, 64 percent have been completed and more than one-third are still pending, according to the GAO. Investigators said the FDA does not rigorously track whether companies are making progress on their required studies, although the agency is improving.

FDA officials say they have overhauled their tracking system since the GAO completed its report. And an outside analysis by contractor Booz Allen Hamilton concluded last month that most companies are meeting their study requirements on time.

But in the case of Shire Laboratories' low blood pressure treatment ProAmatine, the required study has gone incomplete for more than 13 years. The GAO found that ProAmatine has generated more than $257 million in sales, even though "the clinical benefit of the drug has never been established."

In other cases, the FDA has failed to act even when company studies show drugs did not improve patient outcomes.

The FDA approved AstraZeneca's lung cancer drug Iressa in 2003 based on early results showing it reduced the size of tumors. But later studies showed the drug did not significantly extend patient lives.

The FDA has left the drug on the market, despite hundreds of reports of a sometimes fatal pneumonia.

"The FDA has talked a lot about doing more enforcement, but this is an area where they're basically defending not enforcing the law," said Dr. Sidney Wolfe, of the consumer advocacy group Public Citizen.

Wolfe said the lax policy sends a message to companies that there is no penalty for failing to complete studies.

Righting Wrongful Denials of Insurance Coverage

This article from the Los Angeles Times provides a good, brief insight into what I think is one of the worst federal laws ever passed — the Employee Retirement Income Security Act, better known as ERISA.

One purpose of the healthcare reform effort in Washington is to help more Americans obtain coverage, in part by making policies available to people with preexisting conditions. But the pending bills wouldn't end the nightmares faced by others whose insurance fails them when they need it most.

The problem starts with the 35-year-old Employee Retirement Income Security Act, a federal law that regulates the pensions, retirement savings programs and other benefits provided by private employers, guilds or unions. ERISA imposes two of the same requirements on employers' group insurance policies that Congress wants to apply to the individual insurance market: no denials of coverage and no increase in premiums for individuals with preexisting conditions. But it also exempts employers from state rules mandating which types of treatments must be covered and protects employers and their insurance partners from most damages if a policyholder's treatment is wrongfully delayed or denied. Patients can go to federal court and try to force the insurer to pay for the treatment, but, as Times staff writer Lisa Girion has pointed out, that's cold comfort for the families of those who die waiting for the dispute to be resolved. State regulators may levy fines against some insurers that act unfairly on a broad scale, but they don't have the wherewithal to respond to individual patients' complaints.

Insurance industry lobbyists argue that many employers would stop providing health benefits if they lost this shield against bad-faith and wrongful-death lawsuits. But because it includes no potential penalty for bad faith -- the only remedy, after all, is to pay for a treatment wrongfully denied -- the current system has the perverse effect of giving insurers and self- insured employers an incentive to deny costly claims whenever possible. And that incentive could increase if Congress enacts a healthcare reform bill that stops insurers from shunning the people they'd previously deemed too costly.

Giving people the right to collect damages from insurers that deny treatments their doctors recommended would provide a deterrent to bad-faith cost-cutting and remove an unjustified disparity between ERISA-covered plans and other policies. But lawmakers should explore ways to do that without forcing more of these disputes into the courts. Developing guidelines for effective treatments could provide a way to resolve questions about what should be covered. Promoting competition among insurers would help too -- possibly by giving employees more choices of plans. That way, consumers could vote with their wallets against insurers that violate their promise to pay for necessary care.

Halloween Safety Tips

As Halloween approaches, I’m updating my Halloween Safety Tips article. Most of this is just common sense, but at Halloween, some of us seem to lose our a bit of our common sense and we do foolish (as well as ghoulish) things.

Halloween can be a very enjoyable time for kids and adults if "trick-or-treating" is done sensibly. However, parents and children should always remember basic rules of safety and be aware that there are some people who tend to go too far with pranks and mischief. Don't let those people ruin your fun. Trick-or-treating is for kids, so keep these guidelines in mind.

● A responsible adult or teenager should be with the kids.

● Kids should go out in groups Try to limit the groups to four or five members if possible, and know who is in each group.

● If a child thinks he or she is too old to be accompanied by an adult or teenager, he or she is probably too old to be trick-or-treating.

● Organized parties are one possible alternative to trick-or-treating for older kids (younger children may enjoy this activity, also.)

COSTUMES

Halloween costumes come in many shapes, sizes and styles. Discuss what type you or your child will be wearing, then whether you buy it or make it you should incorporate safety into it. Here are some aspects to think about:

● Is it too binding, or does it allow freedom of movement?

● Is the footwear too big? This could cause tripping, stumbling, ankle twisting, etc. Your regular street shoes would be best.

● Some costumes have capes, hoods, and/or attachments which could snag, trip or otherwise cause problems.

● Anything that is part of the costume, such as swords etc., should be made from flexible material and have a definite appearance of being imitations that are not capable of harm.

● Rather than using a mask that could block vision, use face paints, or makeup.

● Costumes should be made of white or light colored materials or have some type of reflective tape, patches, or strips attached. Fire resistant materials are recommended. Many sidewalks and porches will have candle-filled jack-o-lanterns, and these can be a fire hazard to a loose costume.

● Put emergency identification (name, address, phone number) within Halloween attire or on a bracelet.

● Take extra effort to eliminate tripping hazards on your porch and walkway. Check around your property for flower pots, low tree limbs, support wires, or garden hoses that may prove hazardous to young children rushing from house to house.

TIPS FOR KIDS
● At least one person in each group should carry a flashlight, and preferably each member should carry one. If you carry a flashlight, use it.

● Never eat anything until after you are home and the treats have been examined.

● Carry trick-or-treating bags or containers that have handles. This allows free movement of arms.

● Stay in your own neighborhood and only go to houses that have porch lights turned on.

● Walk, don't run.

● Stay on sidewalks and don't cut through yards.

● Try to avoid dark areas and stay in lighted areas.

● Keep your distance from strangers.

● Don't go into a stranger's house.

● Don’t cross streets except at intersections, and remember that drivers may have a hard time seeing kids in costumes. Look both ways before crossing streets.

TIPS FOR ADULTS
● Cut and wash fruit before eating. Throw away anything unwrapped. Check wrappers of commercial treats for signs of tampering. Notify police if harmful items are found.

● Encourage your kids to eat before going trick-or-treating to help them avoid the temptation of snacking on their treats before you check them.

● Do not invite trick-or-treaters into your residence.

● Do not leave your home unattended on Halloween night.

● Do leave your porch light on as a signal to children that it is O.K. to trick-or-treat at your residence.

● Keep your pets inside on Halloween night.

● Know the route your children intend to take and impress on them the importance of following it.

● Report suspicious activities such as mischief, bullies or trouble makers to the police.

● Use only battery powered lanterns or chemical lightsticks in place of candles in your decorations and costumes.

Have a fun and safe Halloween!