STUDY SHOWS MEDICAL MALPRACTICE LAWSUITS NOT THE CAUSE OF HIGH HEALTHCARE COSTS

The civil tort system in our country serves two important purposes. The system (1) compensates injured victims for the harm they have suffered and (2) holds wrongdoers accountable for their actions, which gives them and all others a financial incentive to avoid carelessness. Healthcare is an area in which the civil tort system is particularly important. When healthcare providers are careless, patients can be seriously injured, or even killed.

Tort reform advocates argue that medical malpractice lawsuits, and the cost of insurance doctors carry cover these claims, are major contributors to out of control healthcare costs. Tort reform advocates typically argue for arbitrary damage caps that severely limit the damages paid to injured victims of medical error. A recent Harvard study shows that tort reform advocates are wrong. Medical malpractice lawsuits are not the cause of high healthcare costs.

According to the Harvard study, which was published in the Health Affairs Journal, the medical malpractice system only makes up 2.4% of the total amount spent on healthcare in America. This includes settlements paid to victims, malpractice insurance, and all the legal costs associated with the process.

While reforming healthcare in America is a complicated issue, including tort reform is a mistake. Tort reform will benefit only insurance companies without any significant reduction in the cost of health care. Even if you could eliminate all the costs associated with medical malpractice cases, which is impossible even with the most aggressive tort reform measures, you are barely making a dent in the overall cost of healthcare. This is certainly not the massive cost controlling tool that tort reformers claim and it comes with an incredible human cost. Many people that are seriously injured by medical errors would have their settlements or verdicts limited arbitrarily, perhaps leaving them unable to pay for their recovery.

Keep this in mind the next time you hear commercials or politicians talking about tort reform.

HIP IMPLANT RECALL

Johnson & Johnson’s artificial joint company DePuy Orthopaedics Inc. has issued a GLOBAL RECALL of two of its metal-on-metal hip replacement systems: the ASR Hip Resurfacing System and the ASR XL Acetabular System. DePuy sold approximately 93,000 of these systems.

DePuy Orthopedics Press Release on the recall is as follows:

"Data recently received by the company shows that more people than expected who received the ASR Hip System experienced pain and other symptoms that led to a second hip replacement surgery, called a revision surgery. For this reason, DePuy Orthopedics is voluntarily recalling its 'ASR XL Acetabular System and DePuy ASR Hip Resurfacing System'. This recall means additional testing and treatment may be necessary to ensure the hip is functioning well. In some cases, patients may need additional surgery."

Unfortunately, many patients have had to endure hip replacement surgeries within 12 to 24 months of the hip implants. The hip implants failed after just a few years. Common Symptoms include the following:

1. Constant hip pain
2. Thigh and/or groin pain
3. Pain while walking
4. Weight-bearing pain
5. Pain rising from a seated position

Please contact us at 1-800-371-8220 if you’re experiencing hip pain, loosening of the hip or device, had a replacement surgery or any additional hip surgery after your DePuy hip replacement.

TOYOTA ANNOUNCES ANOTHER VEHICLE RECALL

Toyota has been known for years as a car maker that produces economical, safe and reliable vehicles. This reputation has been seriously damaged over the past year by a series of recalls announced for Toyota vehicles. Toyota’s problems continue. Toyota has announced yet another recall of several hundred thousand vehicles. This recall was necessary because of steering problems on certain models. Specifically, the models that are being recalled have a defective steering lock bar that could break under certain conditions. This defect could cause drivers to lose control of their vehicles leading to serious auto accidents. This recall comes on the heels of at least 8 million other vehicles being affected by Toyota recalls in the past year, and it also comes just days after the company was served with a subpoena from a federal grand jury that is looking into other steering problems with Toyota vehicles.

If you or a family member has been injured by a defective Toyota vehicle, contact Buchanan Williams & Stilley today 1-800-371-8220 to schedule a free initial consultation.

DEADLY HIGHWAY ACCIDENTS INVOLVING TRACTOR TRAILERS DOWN

The Missouri Department of Transportation (MoDOT) recently reported that deadly crashes involving semi trucks have decreased by almost half since 2005, from 173 to 88. MoDOT released a report about the decrease in fatal semi truck accidents in honor of National Truck Driver Appreciation Week, Sept. 19 through 25.

MoDOT cites several reasons for this decline. MoDOT itself deserves some credit for engineering efforts like visibility improvements and rumble stripes that keep drivers in their own lanes. Fatal crashes caused by lane departure fell by more than half in the period under study -- from 136 to 62. There was a particularly steep decline in fatal crashes caused by vehicles crossing the median of a divided highway and veering into oncoming traffic. Those crashes declined by 85 percent, from 20 to 3.

The bad economy has also reduced deadly accidents involving tractor trailers because both passenger cars and commercial trucks are traveling less. When accidents do occur, emergency response personnel are doing a better job of responding to them. MoDOT says emergency response time has improved in both Kansas City and St. Louis. Tom Crawford, president of the Missouri Trucking Association, added that some of the credit also belongs to professional truck drivers who practice defensive driving and pay attention.

Whatever the reasons for the decrease in deadly accidents, let's hope this encouraging trend continues.

TESTING TRUCKERS FOR SLEEP APNEA

The Federal Motor Carrier Safety Administration is engaged in ongoing talks focused on combating trucker health issues like sleep apnea, a major problem contributing to tractor trailer accidents.

Sleep apnea is a condition in which a narrowing or closure of the upper airway during sleep causes repeated sleep disturbances, and possible complete awakenings, leading to poor sleep quality and excessive daytime sleepiness.

This fatigue can lead to very serious truck accident injuries once the driver gets behind the wheel. Fatigue is a significant contributing factor in as many as one out of every seven tractor trailer crashes.

Sleep apnea is closely associated with being overweight. Truck drivers are particularly susceptible to being overweight because of the nature of their job. Trucking requires a driver to sit for eight hours or more each day with limited opportunities for exercise. As a result, as many as 40 percent of truck drivers are classified as significantly overweight.

Truck drivers receive medical exams every couple years, but it has never been required that they be tested for sleep apnea as part of the exam. That may change. The Medical Review Board of the FMCSA has recommended that CDL holders with a body mass index (BMI) of 30 or higher be tested for sleep apnea. A BMI of 30 or greater – 220 pounds for a 6-foot-tall person – puts people at risk for developing obesity-related medical conditions such as sleep apnea. Nearly a third of Americans are clinically obese.

CONTINGENCY FEE ARRANGEMENTS PROTECT THOSE THAT HAVE BEEN INJURED

Large corporations and insurance companies have the resources to pay attorneys $250 to $500 per hour to defend claims brought by injured people. However, most injured people do not have the resources to pay an attorney such an hourly rate to recover the compensation they are owed. For this reason, BWS, and most other injury attorneys, will handle cases for injured people on a contingency fee basis. This means the attorney is paid only if he or she recovers compensation for the injured person. The attorney will be paid a percentage of the amount recovered. A contingency of 33% is customary. A 40% contingency percentage is sometimes used in more complex cases. If the attorney does not recover compensation for the injured person, the attorney does not get paid for the time spent on the case, which can be substantial.

While many accident victims understand that the attorneys’ fee is contingent on winning the case, most do not fully grasp the extent to which a contingency fee can insure full compensation for medical expenses and property damage or loss. Imagine you are involved in an accident. Your injuries prevent you from working, and your savings are insufficient to cover your exorbitant medical bills, let alone pay an attorney $250-$500 dollars an hour to represent you. The contingency-fee arrangement protects you, deferring legal expenses until you recover the compensation you are owed.

Additionally, a contingency fee ensures that your interests are aligned with your attorney’s interests. While an attorney working on an hourly basis gets paid whether or not his client wins the case, an injury attorney working on a contingency fee basis only gets paid if you win the case. An injury attorney working under a contingency fee is also motivated to maximize your recovery because the higher your recovery, the more the attorney gets paid.

Many critics of attorneys claim contingency fees cause frivolous lawsuits. The opposite is true. Personal injury lawsuits require much effort and expense. An injury attorney must hire experts to help build the case, which can cost the attorney $30,000 to $100,000 in some cases. Attorneys are not reimbursed for these expenses if they lose the case. It is not unusual for the attorney and staff to put more than 200 hours into a case. Too many lost cases can cause an attorney to go out of business. Consequently, smart injury attorney only take cases that have merit and are likely to lead to a favorable verdict if the case goes to trial.

SECOND INJURY FUND INSOLVENCY

The Second Injury Fund provides much needed benefits to injured workers. The Fund provides benefits to workers that have a permanent disability or injury prior to their work related injury. For example, if an employee has an amputated right hand at the time he is hired, and later he suffers a work related injury that causes him to lose the use of his left hand, the worker would likely be permanently and totally disabled because he has lost the use of both hands. The employer is only responsible to pay benefits for loss of the left hand (a permanent partial disability). The Second Injury Fund is responsible for paying additional benefits to reflect the fact that the employee is actually permanently and totally disabled as a result of the pre-existing injury to the right hand.

The Fund is also responsible for paying medical bills of an injured employee when the employer fails to insure its workers’ compensation liability. Second Injury Fund also provides benefits to an injured employee with multiple jobs. If an employee is unable to work at a job as a result of an injury that occurred while working at another job, benefits may be claimed from the Second Injury Fund in connection with the job at which the employee was not injured.

The Second Injury Fund is funded by a surcharge applied to workers’ compensation insurance premiums paid by employers. The Missouri legislature has capped the amount of the surcharge paid by employers, which has caused the Second Injury Fund to be underfunded. Unless the Missouri legislature acts, in the near future, the Fund will become insolvent and unable to pay claims.

Fund insolvency is near. In 2009, the Missouri Attorney General's Office issued a memo to attorneys, saying "effective immediately, unless an offer has been previously accepted, all Second Injury Fund offers are withdrawn.” Missouri Attorney General Chris Koster said the decision was made because the solvency of the fund is "in question." According to Koster, current fund revenues will cover settlements it has already made, but that "new obligations upon the fund could potentially push the fund past solvency."

"Therefore, given information currently available, our office has determined it is in the best interests of existing claimants and the state that no new settlements be entered into until a greater understanding of the fund's solvency is reached and until further consultations with executive and legislative leaders are completed," he said in the statement.

As a result of its looming insolvency, the Fund is paying only amounts it is ordered to pay through the litigation process. Even these payments will soon be in jeopardy if the legislature does not act. Contact your local state legislator and encourage him or her to remove the cap on the premium surcharge so that the Second Injury Fund can continue to pay worthy claims.

SOCIAL MEDIA AND YOUR INJURY CLAIM

Your profiles on Facebook, MySpace, and other social media websites can have a negative impact on your injury claim. Photos, status updates, and comments can defeat or devalue your injury claim if you do not use discretion when posting.

After an injury, the best advice is to avoid social media sites altogether. If you do not use your social media profile, it is less likely that you will provide any information to insurance adjusters that will be used against you. An insurance adjuster's job is to pay you as little as possible for your injury claim. You do not want to help the insurance adjuster and damage your claim through your own comments and postings on social media sites.

Consider the following example. If you injure your neck in a car accident, and, shortly afterwards, you post pictures on Facebook that show you riding a jet ski with the status update, "Great weekend spent on the jet ski," the insurance adjuster may find these postings and use them against you. The adjuster may argue that no injured person would be out riding a jet ski.

If you insist on using social media sites after your injury, here are a few rules to follow:

Check your Privacy Settings. Some social media sites, such as Facebook, will allow you to make your personal information and posts private. In Facebook this would mean that only community member on your friend lists will be able to view your status updates (You can go even further by creating friend lists with specific privacy policies applied to them). Be aware, however, that even the highest level of privacy settings may not prevent the insurance adjuster from obtaining posted photos and comments. The adjuster may seek information from your social media profiles during the discovery phase of the lawsuit. While this is still an open issue, some courts have allowed discovery of this information.

When uploading photos, be selective on which photos are appropriate. If possible, set up filters that only allow friends to see your photo albums. For Facebook users, make sure you set your options for tagged photos. You should select "Only Me" for people who can view your tagged photos.

Accept only friend requests from people you know. An insurance adjuster may send you a friend request in hopes of gaining access to your personal information.

Do not join groups with provocative names and/or discussions.

Keep your case private. Do not post any photos of your accident or give any information regarding your injury or your case.

Remember, an insurance adjuster will be searching for incriminating details about your personal life and your injury claim. Ideally, you should not use social media sites during your case. This will ensure that you do not post anything that will harm your case.