TOV Injury and Safety Blog

Justice Taylor writes another opinion for the insurance industry: this time, he lets Engler's Insurance Commissioner overrule the expert physicians

In Ross v. Blue Care Network, Justice Taylor wrote for the majority, upholding the Insurance Commissioner's decision denying payment of health care costs incurred by a patient dying from multiple myeloma.  Under his health insurance contract, Ross was required to seek care "in-network" first.  When U of M couldn't treat him, he went to one of two facilities in the world that treat multiple melanoma (in Little Rock, Arkansas, surprisingly), where the doctors concluded that his life expectancy, without treatment, was on the order of 7 days.  Blue Care denied payment.  When the family appealed, the statutory Independent Review Organization--made up of health care professionals--recommended payment, but Governor Engler's Insurance Commissioner rejected the recommendation.  Justice Taylor endorsed the politically-appointed bureaucrat's decision.

Suing the employer for injuries

Yet another attempt to sue an employer for an extremely unsafe work setting failed with application of the "exclusive remedy" provision of workers compensation.

Undiagnosed asthma patient loses her day in court

Catrina Gee's malpractice case, brought on behalf of her daughter against the  daughter's pediatrician, was dismissed despite the Defendant's expert's acknowledgement that the doctor didn't comply with the standard of care.

The Gang of Four on Michigan's Supreme Court does another favor for insurance companies

In the recent case entitled Mary Ellen McDonald v. Farm Bureau, the Engler appointees to Michigan's Supreme Court overruled 30 years of case law to allow Farm Bureau to enforce a contract provision that was previously considered illegal and unenforceable.

"Who's Who"

George Thompson was recently notified that he had been included in the latest "Honors Edition" of Who's Who Among Professionals and Executives.  He did not buy the book.

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Cancellation and rescission of insurance contracts

  The Courts and the Legislature have been very generous to insurers, allowing them to cancel, rescind or void insurance contracts where there is any evidence of fraud , misrepresentation, or incomplete disclosure in insurance applications.  In some cases, the misrepresentation must be of a "material" fact.

The latest word on Heparin contamination

    The April 22 New York Times reported that the FDA has made progress in tracing Heparing contamination--which has resulted in more than 80 deaths in the United States--to Chinese suppliers.  Following this drama points out serious problems in our future relationship with Chinese authorities, as we continue to send manufacturing jobs overseas.

Physician-patient privilege, litigation waiver and HPPA

When an injured person sues, his or her right of privacy in their medical treatment becomes complicated.  Here are the basic issues in Michigan.

What qualifies as a "land motor vehicle" under your no fault policy?

Gabe Medel's neighbor pulled out into the road in front of Gabe on his lawnmower.  Gabe had to swerve to avoid the neighbor and struck a tree.  Gabe was killed on impact.  His widow attempted to collect insurance under Gabe's Underinsured Motorist Coverage.

When does a consultant become "your" doctor?

In Bacon v. Martin, et al., the Court of Appeals was forced to address this question and not for the first time.  It concluded that no doctor-patient relationship was created by the entry of an order for consultation, followed by a telephone conference between physicians.

"Let Brown ship for you": they pay their employees honestly.

The NYT reported in its April 20 edition that FedEx is saving as much as $400 million dollars a year by treating its drivers as "independent contractors" rather than employees.  UPS, on the other hand, acknowledges that its drivers are  employees and pays the appropriate taxes and insurance to cover them.

"Since you didn't see it, you can't prove it wasn't 'obvious' ".

In Baker v. Tendercare, two judges of the Court of Appeals were unimpressed by the injured plaintiff's claim that a seemingly inocuous crack in the parking lot crumbled beneath her.  They resorted to one of the more absurd holdings we've seen to-date:  since she didn't see the crack before she fell, she can't prove it WASN'T obvious.  Take a moment to think about that one.  Sort of a Catch-22:  if she SAW it, it's "obvious" and she can't sue:  since she DIDN'T see it, she can't prove it wasn't obvious, so--SHE CAN'T SUE.  Yossarian would have appreciated this logic.  Ultimately, the Court held that Tendercare wasn't responsible for her injury because its parking lot was in such bad disrepair, the victim should have considered it dangerous---and stayed home instead of visiting her mother.

Court acknowledges causal relationship between catastrophic injuries and hyperelipidemia

This month, the Court of Appeals in Scott v. State Farm rejected State Farm's refusal to pay for cholesterol medication on behalf of a severely head-injured young woman.  The woman's physicians had confirmed that one cause of her hyperlipidemia was her catastrophic head injury from a motor vehicle accident:  it disabled her from exercise and denied her normal mental acuity and judgment.

Big Pharma ghost-writes the scholarly articles published by MD "researchers"

   One of the medical profession's most respected journals, the Journal of the American Medical Association, published an article this week examining the extent of "ghost-writing" that occurred in published Vioxx research.  The authors unearthed evidence that documented the extent to which drug maker Merck wrote its own laudatory studies before lining up prestigious physicians to sign on to the final product as lead authors.  The study authors and the editors of JAMA  concluded that such ghost-writing is extremely common in the pharmaceutical field, in particular, and that medical journals should more carefully examine pharmaceutical research to detect undisclosed bias.

Justice O'Connor: "We put cash in the courtooms and it's just wrong."

  At a conference last week held in New York City, retired Supreme Court Justice Sandra Day O'Connor stated unequivocally that something must be done about special interests "buying" state judicial seats.  In prior blog entries, we have pointed to this problem and identified the Chamber of Commerce, in particular, as a "purchaser" of "justice".

Drug manufacturers hide negative data

The January issue of The New England Journal of Medicine took a close look at research on antidepressants to examine whether doctors, patients and regulators get an accurate picture of the effectiveness of medications.  They found that drug manufacturers bury negative or inconclusive results, but publish and hype positive results.  The result is a misleading view of the effectiveness of medications, a view that over-states their likely effectiveness.

Titan Insurance sanctioned for failure to pay medical expenses

In Spectrum v. Titan Insurance Company v. Blue Cross Blue Shield, the Court of Appeals upheld the award of fees and costs to the Plaintiff against the Titan Insurance Company, for failing to timely pay auto no fault PIP medical expenses.

More open and obvious

Hope Hanson's claim against Holiday Stores, arising out of her broken elbow, was dismissed because she "could have observed" that a red mat laid on the store floor overlapped a brown mat, creating a trip hazard.  As a result, the Court held that the store had no duty to eliminate the trip hazard.  We're not sure why Michigan retailers or homeowners even bother with premises liability coverage any longer:  the Court has eliminated any duty to take reasonable care of your premises, and we are paying premiums for protection against a phantom liability exposure. 

Has your liability coverage premium come down in the past few years?  The number of actionable cases has been reduced by well over one-half. And the premium dollars have been converted to insurance company profits.

New co-pays for expensive drugs

In another sign that the people who run our country have no compassion for the less fortunate, a new co-pay system has been devised, passing on to patients enormous co-pays for the most expensive drugs.

The birth control patch as evidence of the danger of federal premption

  The Bush appointees to the US Supreme Court are on a mission to preempt state rules and laws protecting citizens from unsafe products and drugs.  Johnson & Johnson's inadequate disclosure to the FDA with regard to Its Ortho Evra birth control patch demonstrates the inadequacy of the extreme conservative approach to regulation.

CMU Stadium not a public building?

  Frieda Williams was injured when she stepped in a crack at Perry Shorts stadium on her way to the restroom.  She was at the stadium as a band camp participant.  The trial judge's decision that CMU is immune from suit because the stadium was not a public building and was not held open to the public was affirmed by the Court of Appeals.

Dr. Randall Stafford objects to the FDA refusing to regulate off-label drug use

   Dr. Stafford recently authored an article objecting to the FDA's proposed new rules which would allow broader off-label drug use by easing restrictions on marketing drugs for off-label use.    "Off-label" drug use is the term used when physicians (legally) prescribe a drug for a use that has never been scientifically supported and for which the drug was not expressly approved.  Currently, physicians are allowed to exercise this discretion, however, drug reps are not allowed to promote off-label uses. 

     This proposed easing of regulations is yet another example of the Bush Administration's round-heeled approach to industry regulation and its coziness with the pharmaceutical industry, in particular.  In short, the Bush Administration has yet to meet a henhouse that it wouldn't regulate by inserting a fox, and Dr. Stafford judiciously identifies the problems with this approach. 

    The FDA's role should be to assure that medications are used only where scientific data supports their use, and it should be the clearinghouse that controls the dissemination of accurate, balanced information on data.  If it eschews this role and allows drug marketers who have a profit incentive to control the flow of information to harried doctors, no good can come to consumers.

Is a malpractice victim's family limited to the evidence they had before they filed suit?

  Two separate panels of the Court of Appeals recently answered this question in the negative, in response to technical procedural motions by malpractice insurers, attempting to limit claims to the evidence that was known to the victim's family prior to discovery being undertaken.

Mayo Clinic provides optimal care, cheaply

  The recent publication of the latest edition of the Dartmouth Atlas of Health Care, (published by Dartmouth's Institute for Health Policy and Clinical Practice) compared the cost of health care at a number of top-notch institutions.  Medicare spending for patients in the last two years of life at the top five teaching hospitals in the country showed quite a variance:  from $93,000.00 per patient at UCLA  and $85,000.00 at Johns Hopkins, to $53,000.00 per patient at the Mayo Clinic. 

      Are residents of the east and west coast generally sicker than midwesterners?  Certainly the statistics on mortality and health care costs would not support that conclusion.  So what explains the difference?  First, the general cost of living in Baltimore and LA is higher than the cost of living in the Twin Cities; that probably plays a role.  But the cost of living isn't double: the study found that services were priced relatively similarly. 

     Rather, the difference is primarily a function of UCLA and Hopkins providing more services and more in-patient days.  Why does that occur if the patients are no "sicker"?  Physicians at UCLA and Hopkins are paid on a fee-for-service basis; Mayo physicians are salaried:  the incentives in the former institutions are all toward performing every possible service that can be justified.  The incentive at Mayo is to tailor services to the patient--and no one claims that Mayo provides second-rate service.

American Airlines strands thousands; blames FAA

Yesterday American Airlines stranded thousands of additional travelers as it grounded more than a thousand flights.  It claims that the FAA is at fault in the groundings because the FAA had not previously enforced its rules on regulatory inspections, leading American to believe that it need not comply.

New death toll for contaminated heparin

  Today, NPR reported that the number of deaths attributable to contaminated Heparin had risen above 100 for the 13 months from January of '07 to February of '08.  The Traverse City Record Eagle for April 9 cited a lower death total, in the 60s, for an undefined period. 

The contaminated Heparin is produced by a Wisconsin manufacturer and produced at a plant in China.  The contamination is thought to originate with an unlicensed supplier of raw material not regulated by the FDA or the Chinese government.  Further explanation of this issue is available in earlier blog entries discussing contaminated Heparin, under the title "product injuries".

Start by proving there was no "wetness-free path" by which you could have left

  We should start hiring comedians to write Michigan judicial opinions.  Only a comedian could write this material with a straight face.  This month, the Court of Appeals held that a woman who fell while leaving a restaurant couldn't sue over her injuries, because she didn't prove that there was no "wetness-free path" she could have  taken to leave.

Farm Bureau strikes again: "You expected us to pay a claim?"

  Beware of the small print in your insurance contract:  you can't negotiate the language or change it; but the insurer and some judges will strangle you with it.

The last word on cancer screening conflicts of interest

  As it turns out, all of the doctors involved in the lung cancer screening controversy had money coming in from somewhere.  The two Weill Cornell doctors who recommended spiral CT scanning for lung cancer and suggested it would save lives had based their research on a 3.6 million dollar grant they received from the tobacco companies.  Critics questioned whether their research conclusions might blunt the drive to reduce smoking by suggesting that it was "curable".  On top of that influence, it turns out the two doctors would have received royalties from the licensing of General Electric diagnostic technology if screening were to be widely adopted.

    The two outspoken critics of the Weill Cornell doctors also had a financial stake:  one was a radiologist who received $30,000.00 from tobacco interests for testifying that screening had not been proven effective and should not be charged to tobacco companies.  She put this money into a Medical School account at UCLA, according to the New York Times.   The other physician was paid $700.00 to sign an affidavit summarizing the current research and concluding that unproven CT scan screening would not be advisable:  the TImes reported that this doctor returned his affidavit money, but did not indicate whether it was before or after the controversy arose.  Our conclusion:  doctors can make a lot of money outside their medical practice when drugs and medical equipment are thrown in the mix.

"Death, in Michigan, is not a 'bodily injury' "

  In yet one more example of political activism at the expense of innocent consumers, the Engler majority on the Michigan Supreme Court has denied the victim's family the right to sue a government agency when the government driver negligently kills an innocent person.  They denied mom and dad's right to sue for their daughter's death by negligent operation of an ambulance, and denied a wife's claim for consortium when her husband was read-ended by a Road Commission claim.  Defenses that were universally and thoroughly dismissed by knowledgeable attorneys have now become the law of our state.

An unlikely and injudicious ruling on the impact of medical records

     It has long been maintained that "hard cases make bad law".  That principle was demonstrated once again in Thomas v. Schneider, an unpublished per curiam opinion of the the Michigan Court of Appeals.  From what can be gleaned from the opinion, it appears that the plaintiff in Thomas appeared to the Judges to be misrepresenting the injuries she suffered in a motor vehicle collision and over-stating their impact on her prior medical state.  In summarily dismissing her auto no fault claim, the judges felt that the need to eliminate her contradictory deposition testimony so that a "non-deserving" Plaintiff could be dismissed without a trial weighing conflicting evidence.  To achieve that goal, the Court held that her deposition testimony about her condition could not be considered because it contradicted her prior statements to medical treaters.

     Reading between the lines, it appears that the appellate court concluded that the Plaintiff was not truthful and did not want her to waste the resources of a "day in court".  Nevertheless, it went much too far when it struck her testimony:  no rule of evidence or court rule would justify this outcome.  We have seen too many examples of hurried, forgetful or even biased doctors making mistakes or mis-statements in medical records to allow these hurried chart notes to completely exclude a witnesses' explanation.  A health care provider's primary responsibility is to treat the patient and it does just happen on occasion that a medical chart will mistakenly refer to the wrong gender of the patient, the wrong limb being injured, the wrong accident facts (from another ER case of the same date) or create some other confusion or error.  We have personally witnessed numerous examples of this nature of the years.  The ruling in Thomas v. Schneider is simply bad law and ultimately too draconian an exercise of judicial discretion to be justifiable--simply to uphold the summary dismissal of one "bad" case.

Another abusive "serious impairment" decision

  In McCormick v. Carrier, two Court of Appeals judges applied the Michigan Supreme Court's recent interpretation of the "serious impairment" threshold to dismiss the claim of Mr. McCormick.

Federal Appeals Court upholds Family Medical Leave

  When Rosalyn Grace was hospitalized with asthma and did not get back to work for several weeks, she thought her job was protected by the FMLA.  The automotive industry, relying on "staffing agencies" as insulation, fired this 8 year employee.  While the Trial Court upheld the firing, the Court of Appeals reversed and reinstated her.

Disability insurers abuse Social Security with frivolous claims

   A lawsuit has been filed by a number of knowledgeable "whistleblowers", criticizing the practice of dumping private disability claimants on the Social Security Disability system, in an effort to avoid paying purchased disability benefits.

Hiding the truth from consumers

   As the actual data from studies on Vytorin and Zetia is finally released, it appears to show that thousands of consumers have been paying for expensive drugs that do them no good in trying to avoid heart attack or stroke.

Is the FAA just a marketing agency, intended to create the appearance of safety in air travel?

  Recent revelations from the Congressional testimony relating to the Southwest Airlines maintenance debacle suggest that the Federal Aviation Agency is not conducting the safety regulation that we assumed.

Cigarette class action goes up in smoke

  The cigarette industry--makers of the world's most unsafe product--won another round in the U.S. Courts when a federal appeals court threw out the class action lawsuit on behalf of smokers of "light" cigarettes.