P.I.S.S.D. -- Personal Injury, Social Security Disability. Dallas Texas Lawyers

Studies On Chemical In Plastics Questioned - FDA

The Washington Post has an article today that illustrates the fallacy in the current trend of the Bush administration and the U.S. Supreme Court to push the doctrine of "preemption." This is the legal theory that basically states if a federal agency approves a product, then consumers are forbidden to file any claims for damages caused by that product. The argument against premption is that the government is starving the federal agencies by reducing their budgets, thereby reducing their abilities to adequately test products. The story is about safety concerns with the chemical compound bisphenol A (BPA). Here are excerpts.

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

As evidence mounts about the risks of using BPA in baby bottles and other products, some experts and industry critics contend that chemical manufacturers have exerted influence over federal regulators to keep a possibly unsafe product on the market.

Congressional Democrats have begun investigating any industry influence in regulating BPA.

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product.

Scientists first flagged possible health risks of BPA more than a decade ago. From 1997 to 2005, 116 studies of the compound were published, many of them focused on its effects in low doses. Of those funded by government, 90 percent showed a health effect linked to BPA. None of the industry-funded studies found an effect; all of them said BPA is safe.

Allstate Insurance Releases Documents As Ordered By Florida Court

I've written several times now about Allstate Insurance being banned from writing new policies in Florida until they released certain court-ordered documents. Allstate has now released those documents online.

This is going to be deathly dull to almost everyone except a few interested parties, but I'm sure there will be some juicy little nuggets that will come to light eventually. As for me, I'll let someone else be the first to read the 150,000 pages of documents...

Allstate Is Again Banned From Writing Policies In Florida

In the continuing saga of Allstate Insurance and the State of Florida, the latest news is that Florida's First District Court of Appeals has overturned a lower court ruling, and has reinstated the prohibition on Allstate writing new insurance policies.

The original controversy surrounded Allstate's refusal to comply with subpoenas regarding its property insurance policies in Florida. The ban applies to Allstate Floridian Insurance Co., Allstate Indemnity Co., Allstate Property & Casualty Insurance Co., Allstate Insurance Co., Allstate Floridian Indemnity Co., Allstate Fire and Casualty Insurance Co., Encompass Insurance Co. of America Encompass Indemnity Co., Encompass Floridian Insurance Co. and Encompass Floridian Indemnity Co.

Frivolous Disability Claims Are Overloading The Social Security Disability System

Lawyer who represent Social Security disability claimants have always known that the disability system is clogged up with frivolous claims. People, for one reason or another, who file a Social Security disability claim when they know they don't qualify. Some people file claims even though they're able to work full-time, and other people file claims even though they haven't worked long enough to qualify for benefits.

But we've also known that many of these frivolous claims are from people who have been forced to file by their long-term-disability insurance carriers. Now word is getting out to the general public about this problem of LTD carriers filing frivolous Social Security disability claims and causing people with legitimate claims to have to wait longer for resolution.

The Dallas Morning News carried a long article about this problem recently. Here are excerpts from the story:

The Social Security system is choking on paperwork and spending millions of dollars a year screening dubious applications for disability benefits, according to lawsuits filed by whistle-blowers.

Insurance companies are the source of the problem, the lawsuits say. The insurers are forcing many people who file disability claims with them to also apply to Social Security – even people who clearly do not qualify for the government program.

The Social Security Administration defines "disabled" much more stringently than the insurers generally do, so it rejects most of the applications, at least initially. Often, the insurers then tell their claimants to appeal, the lawsuits say, raising the cost.

The insurers say that requiring a Social Security assessment is a standard practice and that there is nothing wrong with it. The policies they sell allow them to coordinate their benefit payments with others to make sure no one is paid twice. Thus, if a disabled person can get benefits from somewhere else – like workers' compensation, a disability pension or Social Security – the insurance company can reduce the benefit check by that amount.

The flood of referrals, however, is making it hard for Social Security to respond to people who are truly disabled, said Kenneth Nibali, the former top administrator of the Social Security disability program.

"Anybody who is forced to come into this system, and who doesn't need to be there, is affecting someone else," said Mr. Nibali, an expert witness for the plaintiffs. "They're holding up cases for the people who have been waiting for months and years, who in many cases are much worse off."

The number of people waiting for hearings on their disability claims by an administrative law judge has more than doubled since 2000, and the average wait has grown to 512 days in that time, from 258 days.

Consumers Beware - Pre-emption By Preamble Steals Your Legal Rights

Recent actions by federal regulatory agencies, combined with a U.S. Supreme Court decision are extremely troubling to consumer advocates. The gist of the problem is that federal agencies under the Bush administration are taking the stance that their rules trump state court verdicts.For example, if a federal agency said a prescription drug was safe, then a state jury verdict finding the drug to be unsafe would be void.

Aside from the overarching argument that federal agencies have no constitutional right to exert control over state courts, the problem with this approach is that political considerations can decide whether the agencies find certain products to be safe. If a giant pharmaceutical company makes a large contribution to a presidential candidate, there will be a natural tendency for the president to influence the federal agency to protect the financial interests of the pharmaceutical company. Some consumer advocates think that's exactly what's happening now.

Who gets hurt by this process? Consumers who have legitimate legal claims against manufacturers, but are prevented from filing those claims.

The Dallas Morning News ran an interesting story about this Pre-emption by Preamble." Here are excerpts.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission says you can't sue a mattress maker if your mattress bursts into flame despite meeting commission standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration proposals for stronger roofs.

Plaintiffs' attorneys call it "silent tort reform." But it's part of tension existing since the nation's founding: conflict between state and federal law.

If they clash, state laws give way. That's in Article Six of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What's riling plaintiffs' lawyers, consumer groups and some regulators is agencies' assertions their rules override state product liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review. She projected preambles may "displace competing or conflicting state regulations or common law as a matter of course."

The practice varies by agency but is spreading. "It's absolutely a trend," said Deepak Gupta, staff lawyer for Ralph Nader's public citizen Litigation Group.

One example of what this means to the average person is found in NHTSA proposals for new SUV rollover rules.         

Attorneys general from 26 states asked the organization in 2005 to drop lawsuit protection from the rules, which could go into effect as early as July 1.

"State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers," the attorneys general wrote.

Sen. Patrick Leahy, D-Vt., at hearings last fall, said agencies have issued at least a dozen rules to shield drug and other product manufacturers from liability.   

Indeed, plaintiffs lawyers say "pre-emption by preamble" has been coming in waves during the Bush administration.

             

Health Insurance Companies Cut Back On Medical Tests - Does This Help Or Hurt Patients?

The Associated Press is running a story today in papers across the country, documenting cutbacks health insurance companies are making in the number of medical tests they approve. Actually, the carriers are requiring pre-approval for more and more tests, which has the effect of cutting back on the total number. The insurance companies say this is for the protection of the patients (to reduce unnecessary exposure to radiation), but doctors say patients are endangered because they're not getting sufficient testing before diagnoses are made. Here are excerpts from the story:

Insurance companies are taking a harder look at advanced medical scans like CT scans, citing spiraling costs and safety concerns. And some doctors agree that there’s emerging evidence that these scans are being over-prescribed.

“Costs are soaring in this area, quality concerns are mounting, and safety concerns are mounting,” said Karen Ignagni, the chief executive of the trade group America’s Health Insurance Plan.

Health insurers are requiring more preauthorizations before patients can have these scans, and setting other restrictions including mandating that the imaging equipment and medical staff be credentialed in advance.

Insurers fear that some patients are being exposed to dangerous radiation levels from having repeated CT and PET scans, which use many times the radiation of a regular chest X-ray. Sometimes, scans are repeated because the first ones were not done properly because of outdated equipment or poorly trained technicians.

But doctors say that the bigger problem with medical imaging tests is the insurance red tape needed to get them.

“Is this a preauthorization process, or are these (insurance) companies practicing medicine?” asks Dr. Arl Van Moore, the board chairman at the American College of Radiology, the specialists in medical imaging.

Moore cited another reason for increasing costs: Doctors sometimes order a diagnostic test that doesn’t need preauthorization - even if it provides less-helpful information than the one they prefer - then try to get approval for a more advanced test if the first one shows that it’s needed.

Worse yet, sometimes patients end up getting a riskier, more invasive test than what they really need, Hendel said. For example, cardiologists wanting to assess blood flow and blockages inside a patient’s heart arteries would prefer a nuclear cardiology test. With that, a small amount of a radioactive substance is injected in the blood and tracked using a camera.

Some doctors will instead order a cardiac catheterization, which doesn’t require advance authorization, Hendel said. But that involves threading a catheter through a blood vessel up into the patient’s heart - and carries a 10-times higher risk of complications such as a heart attack or stroke, he said.

Allstate Temporarily Banned From Florida

As reported in the Florida Sun-Sentinel, the State of Florida temporarily banned Allstate insurance Company from doing business in Florida because of Allstate's failure to turn over certain documents in an investigation into Allstate's pricing practices. The ban was enacted by the State Department of Insurance, but lifted later by a District Court. The decision is now on appeal. From the article:

The battle between state regulators and Allstate Insurance Co. heated up Friday as the First District Court of Appeal lifted the state's ban on 10 Allstate companies.

Regulators barred the insurer Thursday from issuing any new policies in the state as a punishment for failing to submit documents demanded by the state. Allstate took the first step in appealing the suspension late Thursday and the Court lifted the ban, giving the Office of Insurance Regulation 10 days to prove the need for it.

McCarty cut short a hearing this week investigating Allstate's pricing practices after it failed to submit all the documents required. It's the first time his office has suspended a company for not producing documents.

The potential ban would apply to Allstate Floridian Insurance Co., Allstate Indemnity, Allstate Property & Casualty Insurance Co., Allstate Insurance Co., Allstate Fire and Casualty Insurance Co., Encompass Insurance Co. of America, Encompass Indemnity Co., Encompass Floridian Insurance Co. and Encompass Floridian Indemnity Co.

If the ban takes effect again, Allstate is expected to be hit hardest in its auto insurance business; it collected $1.93 billion in auto premiums last year in Florida and has recently been adding 3,500 new policies a week in the state.

Social Security Disability - A "Culture To Deny"?

CBS News ran a story this week about the "culture to deny" of the current Social Security disability system. Here are excerpts:

Each year, millions of people who are disabled from an accident or disease turn to the federal government for Social Security disability payments - a benefit that every worker who is declared disabled is eligible to receive. It's a 51-year-old government insurance program - a lifeline of sorts - that every worker pays for through that line-item on their pay stub, known as FICA.

But a two-month CBS News investigation reveals that safety net may not be there when you need it most.

Overall, two out of every three people who apply for federal disability benefits are rejected by a government agency that critics say is out of date, underfunded, and incapable of serving the exploding number of disabled Americans. Waiting times for a hearing in some cities are more than three years.

A two-month CBS News investigation has found that over the last two years, at least 16,000 people fighting for disability benefits died while awaiting a decision.

Overall, the backlog of cases now stands at 750,000 - up 150 percent since 2000.

People wait an average of 520 days for a hearing on their claims.

A two-month CBS News Investigation uncovered a system whose own standards have been called into question - a federal agency reeling from budget cuts and high staff turnover. Doctors making decisions outside their specialties, and inexperienced examiners under pressure to keep costs down.

CBS News has learned that two-thirds of all applicants denied last year - nearly a million people - simply gave up after being turned down the first time.

Given how many claims are ultimately approved, that could mean hundreds of thousands of Americans are not getting the benefits they paid for - and deserve.

Workers' Compensation Insurance Company Attempts To Defraud The Court

WFAA TV in Dallas reports that a Texas District Court judge has ruled that the state's largest workers' compensation insurance carrier committed fraud against an injured worker. It is interesting to note that this insurance company has lobbied extensively before the Texas Legislature for immunity from bad faith claims arising from the wrongful denial of  benefits to injured workers. I guess now we know why this issue has been so important to them. Here are excerpts from the story:

Texas Mutual Insurance Company has already been accused of callously denying claims against injured workers, but allegations of falsifying records could be a first.

Questions about Texas Mutual's business practices were first raised in a News 8 Investigation four years ago.

Injured workers complained that the insurance carrier was randomly denying their claims and robbing them of much needed medicine and benefits.

District Judge Martin Hoffman issued a ruling declaring "Texas Mutual Insurance Company committed fraud on this court" by "falsifying a critical medical record."

The record was a doctor's report in which someone added letters that tend to support the insurance company's position in the case.

"This fraudulent conduct was committed knowingly by agents and representatives of Texas Mutual Insurance Company," Judge Hoffman said.

The judge ordered Texas Mutual to pay $30,000 and publish the court's ruling on their home page on the Internet.

State Workers Compensation officials said they are already reviewing the facts of the case. Texas Mutual officials have yet to respond.

How Low Will Insurance Companies Go To Deny Claims?

My friend Jonathan Stein has come across a story about Progressive Insurance that shows there's just no limit to the tricks insurance companies will pull to keep from paying claims. Be sure to read Jon's post at his California Personal Injury and Insurance Blog.