Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

I have now been involved in several prior legal seminars that were planned and hosted by the National Business Institute (NBI).  NBI offers continuing legal education courses in numerous states, including Alabama.

On one earlier occasion, NBI planned a seminar that brought together a number of distinguished Judges in North Alabama to provide practical advice.  Due to a conflict, the attorney scheduled to host the question and answer session had to cancel.  I offered to fill-in for him as host and greatly enjoyed the opportunity to interact with both the Judges and audience of attorneys attending the event.  Last year, I attended an environmental law seminar sponsored by NBI.  Again, I was thoroughly impressed with the speakers and their presentations.

On November 17, NBI is sponsoring a seminar in Huntsville titled "Personal Injury 101."  When NBI approached me about being one of the presenters at the seminar, I was hesitant to commit.  I initially thought the topic was a little too broad to provide any meaningful information.  However, when the event planner at NBI explained the actual topics for discussion and the attorneys committed to presenting them, I quickly changed my mind.

This upcoming seminar is going to provide a wealth of information.  I am going to speak about some interesting Alabama appellate decisions in 2010 as well as current product recalls that impact the safety of our citizens.  My good friend and fellow attorney, Tony Graffeo, is going to speak about several issues, including expert witnesses.  Tony and I have worked together on several cases, including, recently, a complex business and environmental case against a large chemical company.  He understands well the issues and challenges involving expert witnesses.  Another good friend and excellent attorney, Eric Artrip, is also going to address several topics, including insurance liens and subrogation.  This is a topic that presents a daily challenge to attorneys handling personal injury cases.  I think this seminar will be excellent.  Thankfully, I get to present first so I can sit back and enjoy the rest of the presentations.  If you are an attorney in North Alabama, think about attending this event.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last month I discussed the recent recall of the ASR hip replacement products manufactured by Depuy Orthopedics.  With over 90,000 of these medical implants sold, this is a tremendous issue that will affect many people.  These defective implants can result in significant injuries and damages to the individuals using them. 

How will Depuy treat the patients who underwent these transplants and now face some difficult decisions?  Depuy's past conduct should provide much cause for concern.  In May, a former Depuy executive pled guilty to providing some $7 Million in bribes to doctors in Greece in an effort to persuade them to use the company's products.  In 2007, Depuy paid $84.7 Million to settle civil and criminal probes by the U.S. Department of Justice involving allegations of kickbacks to surgeons in an effort to get them to use the company's orthopedic devices.  Medical device manufacturers, like Depuy, can exercise significant financial influence without simply paying physicians directly.  The industry routinely provides fellowships, sponsors seminar trips, and utilizes means of indirect financial incentives to hospitals and surgeons.

Most physicians care deeply about their patients.  If you receive a recall letter and have a supportive physician, your physician should discuss the issues with you and conduct any needed tests.  Some supportive physicians are actually encouraging their patients to seek legal representation.  If you don't have a supportive physician, seek one immediately.

Should you sign the documents Depuy may have provided your physician?  Definitely not.  It appears there may be different versions of these documents.  However, they will allow Depuy to gather all your medical records and, perhaps, the hip device itself.  This would serve simply to help Depuy prepare its defense at your expense.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In at least two prior posts, I have discussed issues surrounding Medicare's rights to be reimbursed for medical payments from settlements or judgments in personal injury claims.  As I stated in the past, dealing with Medicare can be an extremely frustrating experience.  So, I am happy to report a recent court decision that, to some degree, requires Medicare to play by rules that apply to the rest of us.

On September 29, the United States Court of Appeals for the 11th Circuit issued a decision in Bradley v. Sebelius.  The case involved reimbursement claims by Medicare arising out of a wrongful death settlement in Florida.  This case is a welcome decision for attorneys frustrated by the experience of dealing with Medicare.  On his blog, Tennessee attorney John Day wrote a great analysis of this decision.  I agree with John after reading the facts of the case that it involved some great lawyering on the part of plaintiffs' counsel to document and position the case in an effort to achieve this great result.

In the case, the Federal Court rejected Medicare's far-reaching argument that its own field manual was basically entitled to the force of law.  In rejecting those claims, the Federal Court actually stated:

The Secretary's ipse dixit contained in the field manual does not control the law.

If you want to understand the Latin phrase ipse dixit, here is one definition as to its meaning:

The term ipse dixit is the Latin equivalent of the Greek autos epha, referring to Pythagoras, as in, The master (Pythagoras) said it so it must be true and no proof is needed.

The master said it so it must be true!  That pretty much sums up Medicare's prior attitude in dealing with its beneficiaries.  Here, Medicare created its own manual and has attempted to enforce it against beneficiaries as if it were a validly enacted statute.

Additionally, according to this case, Medicare must account for underlying state law concerning substantive recovery rights.  Under Florida's wrongful death law, the claim of an estate is separate and distinct from the claims of the survivors.  Both the estate and survivors of a deceased can sue the party responsible for causing the death in Florida.  However, under Florida law, only the estate can claim medical expenses as part of its damages.  Thus, only the estate's share of any settlement is subject to Medicare reimbursement claims.

This decision is a welcome limitation upon Medicare's actions.  Now, if Congress would only pass legislation requiring Medicare to respond in a timely manner to efforts by private parties to reimburse medical payments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link