May 29, 2007

Kentucky Medical Malpractice Lawyers: Would this fly in Kentucky?

Doctors Attempt 'No Sue by Steven Klearman

Steveven Klearman of Reno has a very interesting read about OB/GYNS making their patients sign waivers containing arbitration agreements and caps on pain and suffering at $250,000.

Citing the high cost of medical malpractice insurance, more than a dozen ob-gyns have joined Obstetricians & Gynecologists Risk Retention Group of America (OGRRGA), a new Montana-based company that is reportedly reducing their premiums by about 50 percent. As part of their participation in the group, these physicians are requiring patients to sign agreements stating that they will pursue any subsequent disputes through binding arbitration.

They also must agree that pain-and-suffering awards will be capped at $250,000.

Clearly, this type of agreement would be unconstitutional in Kentucky.  But don’t think local doctors won’t try it.
May 29, 2006

For the Kentucky Injury Lawyer: Top 5 Things to Do in Response to Unfair Settlement Tactics

TOP 5 THINGS TO DO
IN RESPONSE TO UNFAIR SETTLEMENT TACTICS

A memo for Kentucky injury lawyers:

As lawyers, we care deeply for our clients. We understand the struggles they endure as a result of their injuries. We also know that when an insurance company doesn't seem to care or doesn't take our client's situation seriously, it compounds our clients' stress and worry.

All too often, we are confronted with unreasonable and unfair settlement tactics. Our instincts tell us to react in a strong, adversarial manner. But to do so does not serve our clients' needs. Not only does the negotiation process break down, but it also provides the insurance company with a rationale for continued unfair stance in negotiation.

By continuing to act in a helpful cooperative manner, one of two things will happen:

a. The insurance company will continue to negotiate and will finally agree to pay your client a fair amount.

OR

b. The insurance company will continue to engage in unfair claims settlement practices through delay, denial or low-ball offers.

Obviously, option a is the preferable outcome. But if they choose option b, there is likely a claim under the Unfair Claims Settlement Practices Act. When this comes to fruition, your client's claim is much stronger when you have maintained a helpful, cooperative stance. On the other hand, if you reacted with bravado and bluster, contentious language or threats, the insurance company will use that to their advantage in defense of the "bad faith" claim. They will attempt to paint you as an unreasonable, greedy trial lawyer. Though you know you were just advocating for your client, juries are sometimes duped by the insurance company's argument that your actions justified their unreasonable conduct.

Hence, the following list of things to do in response to denial, delay or low-ball offers.

TOP 5 THINGS TO DO IN RESPONSE TO UNFAIR SETTLEMENT TACTICS

1. Maintain civility and cooperation.
Resist the urge to fire off a contentious letter threatening a bad faith lawsuit. That is the worst course of action you can take.

2. Explain to the adjuster why she is wrong, and why the offer is not fair.
Refer to items in the medical record which contradict her stance. Send extra copies of those pages from the record in case she overlooked them.

3. Tell the adjuster how the delay/denial/low-ball offer is impacting your client's life.

4. Ask her to explain/justify why the company’s offer is so low.

5. Ask if there is more information you could provide her with, and request that she reconsider her offer.


***AS WITH ALL NEGOTIATION COMMUNICATION WITH THE INSURANCE COMPANY, THESE STEPS MUST BE IN WRITING. YOU MUST FILL THE ADJUSTER'S CLAIM FILE WITH CORRESPONDENCE AND DOCUMENTS SO THAT SHE CANNOT LATER CONVENIENTLY REMEMBER THINGS DIFFERENTLY.***

May 25, 2006

For the Kentucky Medical Malpractice Lawyer: Clinton/Obama - Making Patient Safety the Centerpiece of Medical Liability Reform

Making Patient Safety the Centerpiece of Medical Liability Reform

Hillary Rodham Clinton and Barack Obama

We have visited doctors and hospitals throughout the country and heard firsthand from those who face ever-escalating insurance costs. Indeed, in some specialties, high premiums are forcing physicians to give up performing certain high-risk procedures, leaving patients without access to a full range of medical services. But we have also talked with families who have experienced errors in their care, and it has become clear to us that if we are to find a fair and equitable solution to this complex problem, all parties — physicians, hospitals, insurers, and patients — must work together. Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.

We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians. Given this finding, we need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient-safety practices.

To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers. Addressing just one of these issues is not sufficient. Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients.

SUPPLEMENT: Interview with Richard Boothman on a medical-error disclosure program in Michigan.

READ THE ENTIRE ARTICLE: NEJM -- Making Patient Safety the Centerpiece of Medical Liability Reform.

May 20, 2006

For the Kentucky Insurance Lawyer: the Impact of Sereboff on ERISA Remedies

Fantastic article on Sereboff and the future of ERISA remedies from the Workplace Prof Blog.

Check it out ....

Sereboff and the Future of ERISA Remedies (click to read the entire article)

By Guest Blogger: Prof. Colleen Medill, University of Nebraska College of Law

This is the first of what I hope will be a regular addition to the Workplace Prof Blog - comments and observations on legal and regulatory developments in employee benefits law. Chief Justice Roberts spoke at the American Law Institute meeting about 30 minutes after the decision in Mid-Atlantic Medical Services v. Sereboff was announced. In his remarks to the ALI members, Chief Justice Roberts characterized Sereboff as one of four decisions announced that morning by the Court that were "9-0" decisions that "simplified" the law. The audience was, of course, duly impressed with the new Chief Justice. Justice Roberts (who wrote Sereboff) could "simplify" ERISA. Wow!

Having had a few days to reflect on the opinion in Sereboff, and its future implications for ERISA remedies, I think "subtle change," rather than "simple," is a more accurate adjective. Although only 11 pages long, with only two footnotes (a true breath of fresh air after Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)), this decision marks a turning point in the Court's philosophical approach to determining the scope of "appropriate equitable relief" under ERISA Section 502(a)(3). This change looks to be at three levels, described below, starting from most narrow to the most far reaching:

May 19, 2006

For the Kentucky Bad Faith Lawyer: Kentucky Supreme Court Holds UCSPA Continues to Apply During Litigation

Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

Reversing the Court of Appeals, Justice Roach wrote the majority opinion which holds that the insurer's obligation to comply with the Unfair Claims Settlement Practices Act, and duty to act in good faith, continues throughout litigation. However, the court did hold that conduct by the defense lawyer cannot be used to support allegations of bad faith and is strictly inadmissible.

Kudos to Lee Sitlinger and Larry Franklin for this very important opinion!

To read the entire opinion, click here: Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

May 4, 2006

For the Kentucky Bad Faith Lawyer: Foster v. Farm Bureau, The Good and the Bad

Kentucky insurance bad faith decision.

In Janet Foster v. Kentucky Farm Bureau, the Kentucky Supreme Court reached two important decisions.

The Good: An individual who is unemployed at the time of an automobile accident may collect work loss benefits from a job that she is later offered but cannot fulfill because of a physician's advice, and such conduct is covered by the Kentucky MVRA statutes

The Bad: An insurers failure to pay no-fault benefits does not support a seperate claim for bad faith. The Kentucky Motor Vehicle Reparations Act is the exclusive remedy for no-fault claims, and the Unfair Claims Settlement Practices Act does not apply. There is no bad faith claim available for PIP claims, the attorney fee provision of the MVRA is the exclusive remedy.