Columbus, Ohio Attorney Blog - Robert W. Kerpsack Co., L.P.A.

If you received your insurance coverage from HealthMarkets before August, 2005, there is shortly to be a toll-free hotline you can call to learn more about your policy’s limits and benefits. This is part of the settlement resulting from a 36-state investigation into HealthMarkets’ violations of insurance regulations.

Regulators in Washington state and Alaska lead a team which delved into insurance records and practices from 2000 to 2005. This was in response to many complaints from policy holders, who stated that HealthMarkets did not always disclose their policy limits, and did not pay claims promptly enough.

HealthMarkets is owned by three private firms and services about 612,000 policy holders spread over 44 states. Its subsidiaries are Mega Life and Health Insurance, Chesapeake Life Insurance, and Mid-West National Life Insurance. Most policy holders are self-employed.

A History of Violations

According to Securities and Exchange Commission (SEC) documents, HealthMarkets posted a net income of $70.2 million in 2007, having taken in $1.6 billion. Since 2002, it has been fined by seven states and sued by several dozen policy holders.

• In 2006, Massachusetts required that they rethink their denials of policyholder medical bills as far back as January 2002
• In 2008, Maine fined them $1 million and ordered them to refund $5.6 million to policy holders

Now they have agreed to pay $20 million to settle the violations laid out in the investigation report published on July 21.

A New Start?

Since 2005, HealthMarkets has made a lot of changes, one of which is to call all new policyholders and ask them if they understand their coverage. Another is to improve sales agent training, in efforts to better inform their potential policy holders about what they are purchasing. Phillip Hildebrand, HealthMarkets CEO stated that the company cooperated willingly with the investigators and that it is "committed to serving the health insurance needs of individuals, families, the self-employed, and small businesses in a fully compliant manner."

If it does not, it could face as much as $10 million in additional fines. If you have been one of HealthMarkets’ policy holders, this settlement does not require the company to refund you for any past disservice.

At Robert W. Kerpsack Y Co., we represent people who have been victims of insurance bad faith. If you are wondering if you might have such a case, please contact us for a free consultation.

The Consumer Product Safety Commission today announced the recall of certain Dirt Devil vacuum cleaner attachments for safety reasons. They were manufactured in China for TTI Floor Care N. America, in Glenwillow, Ohio. From April, 2007 through April, 2008, they were sold at many stores nationwide and cost between $60 and $170.

The recalled units are Dirt Devil Vacuum Power Brush Attachment Tools, and about 987,000 units have been recalled. The reason is that internal plastic parts can break and be ejected. The Consumer Product Safety Commission website states that TTI Floor Care has received 12 injury reports involving eyes and skin.

Identifying the recalled items

If you have a Dirt Devil, the company is urging you to stop using the turbo tool / power brush immediately. They have set up a web page which gives four steps to follow to determine if your unit is one of the recalled ones. Date codes are J7060 through J7365. They are also offering a free repair kit, which you have to order.

The Consumer Product Safety Commission website has a page giving a description and photos of the recalled items and the relevant vacuum models.

At Robert W. Kerpsack Co., we represent people hurt by defective products. Please call or email us if you have been injured by a hazardous product and would like to know more about your legal options and rights.

The social networking site Facebook is a popular website for young people to chat and post photos, interacting with others of like mind. Employers have begun to use it as a source of information about prospective employees. And attorneys are using it as a source of information about defendants and witnesses.

When you post any text or photos at a site like Facebook, or MySpace, it’s a permanent record which can be accessed by anyone. When such photos are shown in court to illustrate a defendant’s behavior or attitudes, it can be not just embarrassing, but instrumental in persuading a judge to pass a harsher sentence.

Prosecutors are sometimes tipped off that a defendant is behaving in a disrespectful or contemptuous way towards the legal system and their own position as an accused. When photos or text are then found onsite that illustrate these attitudes, that defendant finds it hard to claim that they’re remorseful, or that they’re trying to mend their drunken ways, for instance.

Some recent cases

• A 20-year-old named Joshua Lipton in Rhode Island, charged with drunk driving and seriously injuring a young woman in a 3-car crash – he then attended a Hallowe’en party dressed as a prisoner in black and white stripes and an orange jumpsuit saying “Jail Bird” on the jacket. Photos showed him partying with a young woman and sticking out his tongue at the camera. The prosecutor assembled a PowerPoint presentation for the sentencing hearing to illustrate what Lipton was doing while the injured woman was still in hospital. The judge called the photos “depraved” and sentenced Lipton to two years in prison.

• One Lara Buys aged 22 in California, charged with drunk driving which killed a passenger in her vehicle – posted jokes about drinking and photos of herself drinking wine which changed the prosecutor’s mind about sentencing. He had been willing to give her probation, but instead gave her two years in prison. He commented that she should have been in therapy, going to Alcoholics Anonymous, or in some program to learn about drunk driving.

• One Jessica Blinkerd, a college graduate in California, charged with fatal drunk driving – her defense lawyer urged her to take down her MySpace page. She didn’t. The prosecutor used photos from it in a presentencing report. She was shown with a beer bottle, wearing a shirt advertising tequila and a belt with dangling shot glasses. The judge gave her five years in prison.

The defense attorney for Lipton in Rhode Island claimed that the party photos didn’t accurately show his client’s character, but just showed “a kid who didn’t know what to do two weeks after this accident”.

However, it is quite legal for these “kids” to drink, and legal for them to drive.

If you have lost a loved one in a DUI accident, or if you yourself have been injured in such an accident, please call or email our office. We will be glad to give you a free case evaluation.

A wrongful death is one caused by someone’s negligence. The negligence could take many forms, such as:

• Drinking and driving
• Failing to diagnose cancer early enough
• Manufacturing a defective product
• Failing to maintain the safety of an apartment building and its grounds

Wrongful death is a legal concept, and in Ohio is governed by Ohio’s wrongful death statute. This statute defines the required elements of a wrongful death case, who may file this type of lawsuit, what compensation they may be entitled to, and much more, making it a relatively clear road for a family to follow when they have lost a loved one because of another person’s carelessness.

At Robert W. Kerpsack & Co. we have excellent experience to offer you if you have lost a family member in a wrongful death. The person who would initiate a wrongful death claim would be the executor of the deceased’s estate – either named in the will or appointed by a court. That person would file on behalf of all the estate’s beneficiaries.

Recoverable Damages

Ohio puts no cap on the award amount that could be given, and there is a wide variety of recoverable damages, including:

• Funeral and Burial Expenses
• Mental Anguish
• Loss of Companionship
• Loss of Income
• Loss of Support
• Loss of Consortium
• Past Medical Expenses
• Loss of Benefits (pension, medical coverage, etc.)
• Loss of Care
• General Damages
• Punitive or Exemplary Damages

Any wrongful death claim filed with a court must demonstrate that the death was indeed caused by another’s negligence. This can require time-consuming study of the medical records by an expert witness, or several of them. It is best to begin working with your wrongful death attorney early rather than late, to allow time for information gathering before the claim is filed.

If you would like to have a free case evaluation and possibly file a wrongful death claim, please call or email our office today, and we will be glad to help you in this painful time.

Between the FDA, mass tort attorneys, and drug manufacturers, there is a balance which swings now one way and now the other. There have been a number of highly-publicized drug recalls in recent years, and pressure put on the FDA to require stricter or longer testing of new drugs.

Drug companies already spend many years and billions of dollars on each new drug, first developing it, then testing it to get FDA approval. When the testing period is shorter, the drug can sooner start making money for the drug company, so it can start recouping its huge expenses. When the testing period is longer, the company must carry those expenses longer before they start to get any income from the new drug.

Approvals Delayed

Now it seems the balance is starting to swing torwards a longer FDA approval time. In the past year-and-a-half, Schering-Plough Corp has stopped development on two new drugs – one to combat obesity and one to lower cholesterol. They may also abandon a third drug. Fred Hassan, the Chief Executive, sees their odds for getting new drugs to the market as drastically lowered by a reduced FDA tolerance for drug side effects.

Similarly, Eli Lilly & Co. and the Japanese company Daiichi Sankyo, who have been working on a new heart drug, have said that the FDA wants an extra three months to decide whether to approve it. Merck has said the FDA wants to delay approval of their cholesterol drug Cordaptive until the end of a very large clinical trial, which would postpone any approval until 2013. Diabetes drugs are facing a possible new set of requirements related to their effectiveness on improving heart disease and lifespan, rather than just blood sugar levels.

Fewer Approvals and More Black Box Warnings

In 2007, the FDA approved only 19 new drugs, which is the lowest number in 24 years. It also required about 75 new or updated black box warnings about potential side effects, which is double the number required in 2004.

Complicating Factors

Each time a drug has a few adverse event reports sent to the FDA, the mass media jumps on it as a good source of bad news. Watchdog groups and politicians fan the flames and the end result is that to the general public, things look worse than they are. That a drug “could” cause a certain problem is not the same thing as that drug actually causing it. So politics interferes with science, and the FDA is caught in the middle.

In all this chaos, there are still instances where a drug does in fact cause severe side effects which perhaps were not warned about strongly enough in the drug’s paperwork and labeling. We have excellent experience in class action lawsuits. If you have been injured by a drug or medical device and wonder if you might have a reasonable legal claim, please feel free to contact our office for a free consultation.

Back in March 2007, a chartered bus was traveling in an HOV lane on I-75 SB. On board were 33 members of Ohio’s Bluffton University baseball team, traveling to Florida, sleeping at the time, which was 5:38 a.m.. The driver continued at highway speed up an exit ramp in Atlanta, GA, that approached an overpass. He continued past two signs warning of a stop sign ahead, past the stop sign, and into the cement wall and chain link security fence on the other side of the overpass. The bus then broke through the wall and fell 19 feet onto I-75 below.

The driver was killed, along with his wife who was on the bus, and five of the baseball players. Everyone else on board was injured, seven severely so.

Investigation Report Published

The National Transportation Safety Board (NTSB) conducted an investigation into this crash and on July 8, issued its final report. The report gives three main factors as the likely causes of the crash:

• Inadequate road signs, which did not make it clear enough that the ramp was an exit and not a lane
• Driver error
• Insufficient passenger protection on board the bus

Investigators concluded that the driver must have thought the HOV exit ramp was just a continuation of the lane he was driving in. He veered slightly left into this ramp instead of continuing straight on. One has to wonder why he disregarded the stop sign warnings and apparently didn’t see that he was approaching an intersection.

In the past decade there have been nine similar accidents on this same ramp, and all involved drivers from areas other than Atlanta. The Georgia Department of Transportation had made some changes to the ramp, but not to the signage.

The Chairman of the NTSB described this incident as “an accident that didn’t have to happen”.

The families of the deceased baseball players have been lobbying for more safety features to be mandatory on motorcoaches, such as seatbelts. Currently, Senate Bill 2326 is in committee on Capital Hill.

If you have been injured in a bus accident, or if you have lost a loved one that way, you might have a valid legal case. To learn more about your legal rights and options, please call or email us for a free consultation.

Cipro is an antibiotic with a great track record for treating Anthrax. It is one of the drugs that the federal government has stockpiled in case of a bioterrorist attack. It’s also used for urinary tract infections.

It is one of the drug group called fluoroquinolones, with extra potency. The FDA has asked the manufacturer, Bayer, to add a black box warning that it could cause severe tendon ruptures. Another drug in that group is Levaquin, made by Ortho-McNeil, often used for respiratory infections.

• The fluoroquinolone eyedrops used for eye infections are not included in this warning.

Tendons are the tough connective tissue connecting bones to muscles. If you have been using Cipro or Levaquin, and notice any slight tendon pain, contact your doctor immediately, and stop using the drug. Another antibiotic can be prescribed for you. If a tendon were to rupture, the attached muscle would be unable to move.

FDA Sued for This Warning

This FDA move came after a two-year interchange between the FDA and a consumer group called Public Citizen. The group petitioned for the warning two years ago, but the FDA responded that a warning about risk of tendon rupture was already clearly on the drug paperwork and could be seen by all doctors and patients.

Apparently several hundred reports of tendon ruptures were subsequently sent to the FDA. A spokesman for Public Citizen states that the exact number is 407 as of the end of 2007, plus 341 reports of tendonitis. In his opinion, the FDA should be sending individual letters to all doctors about such risks. But how much would our taxes have to be raised to finance such a mammoth undertaking? The FDA spokesman replied that such an effort is up to the drug manufacturers.

Public Citizen sued the FDA at some unknown date. Bayer and Ortho-McNeil have emphasized that tendon ruptures rarely happen, but they are complying with the FDA’s order and still think that the benefits outweigh the risks with these two drugs.

However, if you have sustained any tendon injury because of using Cipro or Levaquin, and wonder if you have a valid legal case, please contact us to schedule a free consultation.

The SpringBoard Plus, made by the Prentke Romich Company is a speech-generating device (SGD). There are many on the market, some called Augmentative Communication Devices (ACDs). They can be used by people with a speech disorder or with a motor impairment or paralysis which makes writing and sign language impossible.

They are also being used to help with autism. A child diagnosed with autism does not communicate easily and perhaps not at all. But that is not necessarily because he or she doesn’t want to communicate. Outbreaks or tantrums may express the child’s frustration at being unable to talk, and there are researchers working on ways to make talk possible.

How Does the SGD Work?

The SpringBoard Plus looks a bit like an Etch-a-Sketch, with a touch screen in a red frame and about 30 small buttons. Each button has a picture on it to represent a word, and the word itself. When a child touches a sequence of them, a sentence appears in a screen at the top. Another button will make the SGD say the sentence.

Refusal of Insurance Coverage

SGDs cost between $4,500 and $9,000. Not surprisingly, some insurance companies, such as Regence Blue Shield, have refused to cover them, at least for autism. Regence claims that their value for autism is not proved and it has rejected multiple appeals for coverage. Premera Blue Cross has alternated between accepting and rejecting appeals for coverage.

In Washington state, a New York lawyer is working with families of autistic children and disabled people, as well as their speech pathologists. If the speech pathologist determines that an SGD would be a promising option for someone, the patient would try one. The pathologist would work with them to help them make progress in communicating with others. When some progress is established, insurance coverage would be requested.

However, the insurance companies have been relying on research reviews rather than live reports about any particular patient. They have misinterpreted some of the reviews, according to the reviews’ authors. This is an ongoing issue in Washington and perhaps elsewhere. Denial of coverage is a frequent response of insurance companies.

If you have been denied coverage for something you believe should be covered, please contact us for a free case evaluation.

Results were published earlier this year of a nationwide study done by the American Cancer Society. They compared the stage of cancer when it was diagnosed with whether or not those people had (a) private health insurance, (b) Medicaid or (c) no insurance.

The study included patients with twelve different types of cancer who were diagnosed between 1998 and 2004. The insurance information used came from the National Cancer Database.

Some Specific Findings

• For cancers that can be detected by early screenings (such as cancers of the skin, lung, breast, and colon), uninsured people were more likely to be diagnosed in Stage III or IV than Stage I, by two to three times.
• Blacks were statistically more likely to be diagnosed late than whites
• Hispanics were also more likely to be diagnosed late, but by a smaller margin

The researchers concluded that people with no private insurance were not being monitored well enough, either by screening or timely diagnoses. They were unsure why, but speculated that those with no insurance either could not pay for it or did not want to pay for it, and delayed visits to a doctor when they began early symptoms (e.g., a persistent cough that could indicate early lung cancer). Or alternatively, perhaps it was a problem of patient education.

Early diagnosis and comprehensive screening is not necessarily 100% beneficial, some say. It can lead to over-treatment, with doctors treating minor benign tumors as if they were malignant.

The Cancer Society has a mission of increasing the number of people who have health insurance. By 2015, they would like to cut cancer mortality rates by half, and cancer incidence by a quarter.

Cancer diagnosis can also be late because of medical negligence. If you or a loved one have been diagnosed in Stage III or IV, and feel that you could and should have been diagnosed in Stage I or II, you may have a valid legal claim. Please contact our office to schedule a free case evaluation.

A new DUI bill may be signed this week by Gov. Ted Strickland to give Ohio police greater power over DUI suspects. Drivers with three or more convictions for driving under the influence of alcohol or drugs will not have the option of refusing blood or urine tests. Currently, police have to obtain a warrant from a judge before they can give those tests to drivers who refuse to take them voluntarily.

Most other states do not give this sort of power to their police unless there has been a fatal accident, or one which caused life-threating injuries, or when police have probable cause to suspect a driver of being intoxicated.

Work on this bill began in 2006 after an accident which killed two college students. That driver was unlicensed, had over ten previous DUI offences, and was driving his girlfriend’s car. He was eventually given a 38-year prison sentence.

Other Provisions of This Bill

• Ankle bracelets required of previous offenders which test the wearer’s perspiration for alcohol
• More power to punish anyone who lends their vehicle to a drunk driver
• Mandatory one-year impounding of an offender’s auto

A Controversial Bill

Those opposed are expecting legal challenges to this bill after it begins to be enforced, which would be September of this year. One argument for the bill’s being unnecessary is that police can very easily get the warrant for blood tests which is currently required. There is always a judge on duty who can grant it.

Opponents also feel that the executive branch should not be taking power away from the courts. Ohio police are well-trained and are aware when a driver needs to be given a blood or Breathalizer test. Also, anyone who refuses such tests loses their driving license for a year.

Time will tell how effective this bill will be, if it is signed into law. Meanwhile, if you have been hurt in a DUI accident, or if you have a loved one who has been injured in that way, please contact our office for a free case evaluation.