Last week, the New York State Legislature passed an anti-subrogation bill. To the general reader, I realize this news needs some explanation, but believe me, this is VITAL information for anyone who lives in New York State and it is GREAT NEWS for NY consumers!

Roy A. Mura, posted about the new law on his excellent blog, Coverage Counsel.

Roy gives a very technical explanation, but the real gist of it is that this new law will prevent health insurance carriers in N.Y. from getting away with their historic practice of “double dipping.”

You can check out Roy’s detailed analysis of the new bill in his post “New York State Legislature Passes New Anti-Subrogation Law.”

Below is my less technical explanation of what this new law means to the average person.

What is subrogation – and what’s so bad about it?

As a concept, think of subrogation as you paying someone else’s debt and then your attempting to collect from the person that originally owed the debt. No problem if you do it fairly, but insurance companies have been adding their own twist to the idea.

An example would be: You know Jim owes Mary $40. You run into Mary, she mentions your friend Jim’s debt and you pay it. Then you ask Jim for the money. Fair enough. But what if Mary also asked Jim for the money again? And he paid it again? If he paid you back too, he’d be out $80. Mary would end up with $80 – twice the amount she risked!

The analogy is close to what the insurance companies have been doing for years. First, they charge you HUGE premiums for your health coverage. Then, if you get hurt, and you successfully pursue a personal injury case, they tell you you have to pay them back for the health bills they paid on your behalf!

So essentially, you pay for coverage and then when you use the coverage that you paid for, they say they should get reimbursed IN FULL from YOUR money!

Thankfully, this law will stop this horrible double dipping. I am just glad that the whole health care debate is finally shining a spotlight on some of the egregious past practices of health insurance companies!

Thanks again to Roy A. Mura for his detailed posting about the anti-subrogation bill and his permission to link to it from the NY Injury Law Blog.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

I recently received a question from a NY Injury Law Blog reader about a vital concern for many Americans: What are the consequences of ENORMOUS medical bills for families or individuals unable to afford health insurance?

I believe the question, and my reply, will resonate with many readers – especially during this time of high unemployment in New York and Pennsylvania. With the e-mail writer’s permission, I have put together this post in the hope that it will inform readers with the same worries.

Hi Jim,

I was reading your article online and was wondering if you might be able to point me in the right direction here, or advise on what kind of lawyer I need to find (there are so many different kinds!) …

If a couple has no health insurance and they get into a catastrophic health issue, like a major disease or accident, what happens financially? Would they be forced to liquidate their house and/or retirement accounts, and other savings?

Could someone’s entire wealth be wiped out? Or would there be reasonable payment plans or other recourse?

Who could “force” them to liquidate anyway? If they owed the doctors and hospitals six figures, could they just pay what they can each month? Can the hospital/doctors “force” them to liquidate their life savings? Does that happen often?

Thanks,

Rick

Dear Rick:

You ask a truly great question. To answer your question bluntly: Yes, uninsured folks can be financially devastated by the staggering costs of medical treatments.

The bottom line is that my law partner, who is a bankruptcy lawyer, tells me that approximately 75% of all the bankruptcy cases he handles are because of HUGE uninsured medical expenses.

Contrary to conventional wisdom, these folks filing for bankruptcy are good, hard-working folks who merely had the misfortune of getting sick.

Medical providers, just like any other creditor, can pursue a judgment against you for their unpaid bills and once they get that judgment they can collect by all the typical collection methods – wage garnishment, liens against your home, etc.

I am sorry to be the bearer of such bad news, but your question brings in to sharp focus just how important it is for people to have health insurance.

Thanks,

Jim

Even though our exchange may not have offered the answer my reader hoped for, I was glad to share the response, and I hope it gives him something to work with.

I feel that it is important to share what I have gleaned from 20-plus years as a personal injury and medical malpractice attorney in New York and Pennsylvania, so I encourage readers of this blog to e-mail me with questions. I may not always be able offer good news, but forewarned is forearmed.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

Let me share one cold, hard fact with you. Insurance companies are more interested in making profits than in assisting their customers.

You’re nodding in agreement, I bet. But do you truly realize what that means? Some common standards of business ethics go by the wayside when it comes to insurance companies and claims.

I just read a great blog post, “My First Experience with Adjuster Law‏” by Myrtle Beach trial lawyer David Swanner. He does a fantastic job of describing some of the methods insurance company adusters use to manipulate plaintiff attorneys.

Insurance companies manipulate facts

Swanner writes about the first time he met a Geico “super adjuster” who came to wrap up a bunch of cases all at once. The adjuster didn’t pore over the claimants’ medical records or study their demands. She glanced at the files and came up with one snap reason after another why she didn’t think the cases were valid.

Seeing this happen to five cases in a row, Swanner realized something every personal injury attorney and every accident claimant needs to know: the insurance company will look for any plausible reason to NOT PAY a settlement.

Here are some examples of things adjusters might say about your claim:

• You went to the doctor too quickly. You must be faking an injury.
• You waited too long to see the doctor. You must not have a real injury.
• You’re too young. Your injury will go away.
• You’re too old. Your health problems don’t stem from the accident, but from pre-existing conditions.

It’s kind of like the fairytale about Goldilocks – except insurance adjusters are determined to NEVER declare anything “just right.”

Insurance companies manipulate people

The Ziff Law Firm has a newsletter, “Legal News You Can Use” (sign up to receive your copy here). In the Spring 2008 issue, we featured a story about an insurance company that placed investigators undercover in a church support group to spy on a couple with an accident claim! Unbelievable.

I deal with insurance company BS every day. I know that you have to combat their tactics with the honest facts and the hard work of preparing a strong case. They have adjusters and lawyers on their side – shouldn’t you have an attorney working for your best interests on your side?

Thanks for reading, Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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There’s a tool your doctor or hospital can use that could make your chances of dying after surgery drop by 40 percent. The same tool could even reduce your risk of post-surgery complications by more than 30 percent.

It’s not a fancy laser or high-tech diagnostic machine. It’s a simple checklist! All it requires is your surgical team’s commitment to making sure every item is checked off before, during and after your surgery.

The checklist was the result of a World Health Organization research project. The findings were that 19 simple steps – many of them real no-brainers such as “Confirm the patient’s identity, surgical site and procedure,” or inventorying the instruments after the procedure – significantly improved patients’ chances of a smooth recovery.

Medical malpractice can be the result of oversight, the skipping over of details that are important but may be mundane. The checklist offers a simple solution to a serious problem.

The Jan. 14 edition of the New England Journal of Medicine reported on the research project. Click on the title to read the entire “Elements of a Surgical Safety Checklist.”

Thanks for reading, Jim

_________________________________________

James B. Reed, Esq.

Personal Injury & Malpractice Attorney

Ziff Law Firm, LLP

303 William St., Elmira, NY 14902

Tel. (607) 733-8866 Fax. (607) 732-6062

Toll Free 1-800-943-3529

mailto:jreed@zifflaw.com http://www.zifflaw.com

The NY Times had a great article today discussing Medicare “Never Events”. These are events that should NEVER occur in a proper medical setting. In other words, if the medical providers are doing what they are supposed to be doing, these events should NEVER, EVER occur. And if they do occur, Medicare is saying that they will no longer pay Dr’s or hospitals for medical bills associated with these “Never” conditions. In other words, if the Dr’s or hospitals screw up and hurt someone, Medicare is saying the Dr’s or hospitals don’t get paid.

Hallelulah! Now that makes sense– instead of the medical providers getting paid more when they screw up, now they get paid nothing when they screw up. I certainly embrace this as a step in the right direction as it will create a huge financial incentive for the medical profession to implement procedures to ensure that “never events”, never occur.

So, what is a Never Event? Here’s the list from the NY Times:

Looking over the list of events that should NEVER occur, I am not surprised to see many of the types of events for which I have handled medical malpractice cases over the last 20 years–

– hospital falls because proper safety precautions were not taken,
– pulmonary embolish after surgery,
–surgical instruments left inside the patient,
–nasty bed sores because a patient wasn’t properly attended to or treated,
–infections, etc.

Although I am not surprised to see these things on the Never list, it makes me wonder why the Dr’s, Hospitals, their insurance companies and defense lawyers, fought me tooth and nail for year after year attempting to claim each and every one of these things could happen even though no one screwed up. Hmmm, I wonder….. I always thought that was a crock of bull and now it’s nice to have Medicare agree and stiff them on their bills.

Thanks for reading,

Jim Reed
NY Medical Malpractice Lawyer
Elmira, NY
jreed@zifflaw.com

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After 20+ years of battling insurance companies day in and day out, FINALLY a video that expresses my frustration:

Thanks for watching and I hope this video made your day as much as it made mine!

Now back to fighting with these %#@! insurance companies…

Jim Reed
Injury & Accident Lawyer
jreed@zifflaw.com
Elmira, NY

In a world seemingly dominated by all-encompassing HIPAA protections (i.e. the dozens of forms you are asked to sign when treated in the hospital) and daunting HIPAA fears (i.e. your boss’s warning that you cannot repeat, recite nor should you even remember information you learn from HIPAA sensitive documents while on the job,) the question inevitably arises: What can I do if I feel my so-called “HIPAA rights” are violated?

Proper analysis of that inquiry requires a basic understanding of Health Insurance Portability and Accountability Act of 1996. (A complete copy of the HIPAA statute can be found at http://aspe.hhs.gov/admnsimp/pl104191.htm.) Read the rest…

Knock me over with a feather….. As you may recall from my prior post, Wal-Mart was trying to recover every penny of a former employee’s trust fund that she received from a lawsuit after suffering permanent brain injury in a bad car accident. In my prior post I took Wal-Mart to task for its heartless position in this case.

My point in my post was that while Wal-Mart’s position was LEGALLY permissible, it was MORALLY bankrupt. I suggested Wal-Mart should do the “right thing” and let this poor lady keep her money. Well, knock me over with a feather because Wal-Mart just announced that they are going to let this lady keep her money after all!

I am shocked (but VERY pleased) that Wal-Mart did the right thing. I suspect that the only reason they did so was the public relations nightmare created by their horrible treatment of this poor lady, but regardless of their reason, at least Debbie Shank’s life will be a little better because she will have the money to get the care she so desperately needs…..

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
NY Accident & Malpractice Attorney
Here’s the CNN story on the Wal-Mart about-face on this issue:

Wal-Mart: Brain-damaged former employee can keep money

• Story Highlights
• Wal-Mart sued Debbie Shank to recoup $470,000 it paid for her medical care
• Shank appealed to the U.S. Supreme Court, but the court would not hear the case
• On Tuesday, Wal-Mart said it is modifying its health care plan

From Randi Kaye
CNN

(CNN) – A former Wal-Mart employee who suffered severe brain damage in a traffic accident won’t have to pay back the company for the cost of her medical care, Wal-Mart told the family Tuesday.

“Occasionally, others help us step back and look at a situation in a different way. This is one of those times,” Wal-Mart Executive Vice President Pat Curran said in a letter. “We have all been moved by Ms. Shank’s extraordinary situation.”

Eight years ago, Debbie Shank was stocking shelves for the retail giant and signed up for Wal-Mart’s health and benefits plan.

After a tractor-trailer slammed into her minivan, the 52-year-old mother of three lost much of her short-term memory and was confined to a wheelchair. She now lives in a nursing home.

She also lost her 18-year-old son, Jeremy, who was killed shortly after arriving in Iraq. When Debbie Shank asks family members how her son is doing and they remind her that he’s dead, she weeps as if hearing the news for the first time.

Wal-Mart’s health care plan lets the retail giant recoup the cost of its expenses if an employee collects damages in a lawsuit. And Wal-Mart set out to do just that after Shank and her husband, Jim, won $1 million after suing the trucking company involved in the wreck. After legal fees, the couple received $417,000.

Wal-Mart sued the Shanks to recoup $470,000 it paid for her medical care. However, a court ruled that the company could only recoup about $275,000 — the amount that was left in a trust fund for her care.

The Shanks appealed to the U.S. Supreme Court, but the court declined in March to hear the case. CNN told the couple’s story last week, prompting thousands of angry blog responses and at least two online petitions to boycott the company.

On Tuesday, Wal-Mart said in a letter to Jim Shank that it is modifying its health care plan to allow “more discretion” in individual cases.Watch Wal-Mart reverse its decision »

“We wanted you to know that Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank’s care, and we will work with you to ensure the remaining amounts in the trust can be used for her ongoing care,” Curran said.

“We are sorry for any additional stress this uncertainty has placed on you and your family.”

Wal-Mart’s reversal came as shock to Shank.

“I thought it was an April Fool’s joke,” he told CNN.

“I (would) just like to let them know that they did the right thing. I just wish it hadn’t taken so long,” Shank said. “But I thank them and I hope they come through with all that they said they’re going to do.

Source: WikipediaThis recent CNN story (also pasted below), illustrates two problems I deal with on a daily basis in representing my injured clients: 1) Giant corporations are heartless. 2) ALL the cards are stacked against the little guy.

In this case, a Wal-Mart employee, Debbie Shank, paid part of her hard-earned salary for health insurance coverage. Debbie was then involved in a horrible car crash suffering permanent brain damage. Her injury lawyers successfully recovered a $1million settlement on her behalf. $417,000 of the settlement was put in a trust fund to pay for Debbie’s future medical care.

This is where things get nasty. Wal-Mart ’s health insurance carrier said that they paid $470,000 in medical bills for Debbie’s care so they wanted EVERY PENNY of Debbie’s trust fund. That’s right, every penny. Leaving Debbie with nothing.

Now remember– Debbie PAID for her health coverage– it wasn’t something that Wal-Mart was kind enough to give to her.

So let’s see if we get this right: Debbie paid for health coverage but now the health carrier wants to be paid back for everything they paid. So, if the carrier gets paid back for everything they paid, what was Debbie paying for? Doesn’t this mean that the insurance company gets a windfall– they collect premiums to pay for coverage and when they actually provide the coverage that they were paid for, they still have the right to be reimbursed? Short answer: Yes. Read the rest…

Most folks don’t have a clue that if you drive drunk and are injured, your health insurance carrier may have no obligation to cover your medical bills for the injuries you have suffered!

As an accident lawyer who has represented many, many victims of drunk drivers I don’t have any sympathy for drunk drivers who injure, maim and kill my innocent clients, I nonetheless feel bad for the families of the drunk driver who may face staggering medical bills that are not covered by any insurance coverage. Chalk this up as one more, of the MANY, good reasons why no one should EVER Drink and Drive. Save a life– call a cab! Read the rest…