Utah Injury Law

Utah Car Accident Lawyer Reveals Insurance Industry Dirty Secrets

Jared Faerber — Tue, 22 Jul 2008 10:36:38 GMT

Jared Faerber of The Faerber Law Firm

Insurance companies deliberately delay, deny, and defend automobile accident injury claims in Utah and other states around the country. CNN and Anderson Cooper, among others, have conducted extensive investigations to reveal these types of practices in the insurance industry.

Former insurance industry insiders have reported strategies implemented by many insurance companies to limit and deny legitimate claims in minor injury cases. As a result, insurance companies have reaped billions of dollars in profits. Have the companies passed on these profits to consumers in the form of lower premiums? Hardly. Premiums are as high or higher than ever.

Three elements were the focus of the strategy: delay, deny and then defend the claims in court. The insurance industry claims these strategies were not to be used against legitimate claims, but only to fight fraud. The individuals highlighted in CNN’s report, however, say otherwise. Injured parties would be forced to spend years and years in court in an attempt to resolve even small claims. In my years of experience as a Utah personal injury lawyer, I’ve also seen insurance companies such as Allstate, State Farm, and Farmers deny legitimate claims and fight aggressively to avoid paying fair value.

The insurance industry has also fought a new Washington State law requiring insurance companies who deny legitimate claims and later lose in court to pay three times the damages, plus attorneys’ fees. Known as the Fair Conduct Act, this law passed the legislature and was signed by the governor of Washington. Insurance companies have filed a referendum to try to get the law off the books. They have spent millions on television commercials and other advertising to defeat the law. If the industry is only using its deny, delay, and defend strategy on fraudulent claims, why are they so afraid of this law?

According to the story, in 2005, homeowner’s and auto insurance companies made a record 44.8 billion in profits, a 19% increase from 2004. The industry again made record profits in 2006, and continued to do well in 2007. Of course there is nothing wrong with making a profit, but doing so through dishonest practices on the backs of the injured is horrible.

For the complete CNN story, see:

http://www.youtube.com/watch?v=IvPW087RiJ8&feature=related

Utah Dog Bite Lawyer on Dog Attacks and Utah Law

Jared Faerber — Mon, 21 Jul 2008 16:48:28 GMT

Brought to you by The Faerber Law Firm

A dog attack may last only a few seconds, but the physical and emotional scars can last a lifetime. Utah law is appropriately favorable to victims of dog bites. Under Utah law, a dog owner is liable for injuries caused by his or her dog whether or not that dog has previously bitten others or shown signs of being vicious. Lawyers call this strict liability, or liability without fault. It is an easier standard than negligence because it does not require the plaintiff to show carelessness on the part of the dog owner. While there are still some defenses in Utah, generally, all a plaintiff must show is that the defendant owned or kept the dog and that the dog harmed the plaintiff.

In my experience with these types of cases, there is often insurance coverage available, specifically home owner's insurance, to satisfy claims made against dog owners. Dog bite victims should remember that they may need future medical care such as scar revision surgery from a plastic surgeon. In other cases I have handled, the victims required physical therapy to rehabilitate damaged muscles. It is also important to remember that scars, particularly on the face, can result in permanent psychological damage and self-esteem issues.

Another tragic aspect of these types of cases is that most of them are completely avoidable by the dog owners. With proper training, socialization, control, and confinement, dogs can be safely kept. When these practices are not observed, terrible injuries can occur.

Safety, Booster Seats Save Children's Lives

Jared Faerber — Mon, 21 Jul 2008 10:00:00 GMT

Posted by Jared Faerber of The Faerber Law Firm.

An estimated 15 million U.S. children are still riding completely unbuckled, according to the National Safety Counsel. This is an incredible statistic given what we know about the importance of proper restraint for children.

Experts say infants should be in rear-facing car seats, but may be moved to a forward-facing seat after their first birthday. Those from four to eight should ride in booster seats, according to safety officials, and all youngsters under the age of 12 should be in the back seat, away from air bags.

A recent Pennsylvania study found that children who weigh less than 80 pounds and use conventional seat belts are nearly four times more likely to be seriously hurt in a crash than youngsters sitting in safety or booster seats.

Children who don’t fit the seat belt properly can hit their heads on their knees, jerk forward and damage their spines, or slide out of the belt altogether.

Safety experts recommend that children up to age 4 be restrained in child safety seats and those older be placed in booster seats until they are large enough to fit properly in a seat belt, usually by age 9.

A booster seat allows a child to sit higher and fit better in the shoulder belt.

Roads in Utah and elsewhere are dangerous places. We cannot control the driving patterns of others, so please do everything in your power to protect yourself and your loved ones.

Pharmacy Error Causes Utah Teen to Lapse Into Coma

Jared Faerber — Mon, 21 Jul 2008 09:54:45 GMT

By Utah Injury Lawyer Jared Faerber of The Faerber Law Firm

“This shouldn’t have happened. It was needless. It was senseless and it’s changed lives forever, not just Jessie, but there are other people who love him and his future.”

- Laurie Scott

This is from the mother of 18-year-old Jessie Scott, a resident of Draper, Utah, who has been in a coma since the end of April because of a medication error which occurred at a Walmart Pharmacy. His doctor prescribed 5mg of Oxycodone Hydrochoride in a liquid solution to help him with the severe pain of his strep throat. What he received from the pharmacy was a concentrated solution which was supposed to have been diluted before being dispensed. Jessie ended up receiving 20 times the prescribed dose for a total of 100mg of the concentrated solution. Within hours his organs began to fail and he was placed on a ventilator.

Jessie spent 16 days in ICU, was moved to intermediate care for another four days, then to HealthSouth for intensive therapy. He has recently started speaking again.

The words of Jessie’s mother really say it all about this horrific situation. Medication errors are some of the most common medical mistakes. Click here for more information.

Our thoughts are with the family in this difficult time.

Trasylol (aprotinin) Litigation

Jared Faerber — Wed, 05 Mar 2008 16:51:36 GMT

     CBS News' "60 Minutes" recently ran an excellent piece exposing the corruption and greed of some in the drug industry. Trasylol (aprotinin injection) is used to stop bleeding during heart bypass surgery. It was approved by the Food & Drug Administration in 1993.

     A January 2006 New England Journal of Medicine article linked the use of Trasylol (aprotinin) to kidney damage, heart attacks and strokes. In addition, the same researchers completed a February 2007 study published in the Journal of the American Medical Association, which found patients on Trasylol were at greater risk of dying over the next five years than those given two other medications.

    In an interview for the "60 Minutes" story, Dr. Dennis Mangano said the FDA should have pulled Trasylol following his NEJM study. "Between my study and November 5, when it was taken off the market, there were approximately 431,000 patients who received the drug. As I calculated, 22,000 lives could have been saved. It's about a 1,000 lives saved per month delay in taking that drug off the market," he said in the interview.

   The most disturbing part of this is that not until November 2007 did Bayer Pharmaceuticals Corp., the manufacturer of Trasylol, agree to a marketing suspension. The marketing suspension came two weeks after a major Canadian drug trial was terminated because of an increase in deaths for cardiac surgery patients using Trasylol.

    The "60 Minutes" story also pointed out there are several other less expensive and safer alternative medications.

Largest National Meat Recall Involves Utah

Jared Faerber — Mon, 18 Feb 2008 15:16:50 GMT

The New York Times reports on the largest meat recall in history. Here is an excerpt from the story:

A California meatpacker accused of animal cruelty is making the largest U.S. meat recall on record -- 143 million lbs, the U.S. Agriculture Department said on Sunday.

Most of the meat, raw and frozen beef products, probably has already been consumed, said USDA officials at a briefing. Some 37 million lbs were bought for school lunches and other federal nutrition programs. USDA said there was only a minor risk of illness from eating the beef. Hallmark/Westland Meat Packing Co voluntarily recalled all of its beef produced since February 1, 2006. USDA said Hallmark violated rules against the slaughter of "downer cattle" -- that is, animals too ill to walk.

"This is the largest beef recall in the history of the United States, unfortunately," said Agriculture Undersecretary Richard Raymond. Based in Chino, California, Hallmark/Westland has been closed since early February. Company officials were not immediately available for comment.

The Humane Society of the United States showed videotapes on January 30 showing workers at the plant using several abusive techniques to make animals stand up and pass a pre-slaughter inspection. These included ramming cattle with forklift blades and using a hose to simulate the feeling of drowning.

According to USDA reports, the meat-packing company has processed “non-ambulatory cattle,” creating a risk of contaminating meat products with bovine spongiform encephalopathy (BSE), which affects nervous tissue. It is also known as mad cow disease.

The USDA said that there is a “negligible” risk of contracting BSE from eating any of the recalled beef. Let's hope they are right because even one victim is one too many.

    There is also an increased risk of E. coli O157:H7. "Downer" cows have approximately three times more E. coli o157:H7 than other cows.

A UTAH CONNECTION:

    The Salt Lake Tribune today confirmed that some of the recalled beef was distributed to school lunch programs in Utah and consumed by Utah school children. Utah schools have put a hold on ground beef from the Westland/Hallmark Meat Packing Company. Luann Shipley of the Utah State Office of Education said all 29 school districts in the state had been notified of the hold. See the full story here: origin.sltrib.com/ci_8295732

    Again, health officials are saying the risk to human health is low. For some reason, I don't feel completely reassured.

Elderly Patients Deserve Better

Jared Faerber — Mon, 03 Mar 2008 12:44:38 GMT

    The Centers for Medicare and Medicaid Services (CMS) on Tuesday added more names to its list of under performing nursing homes, known as "special focus facilities."   One of them is in Ogden, Utah. This questionable distinction belongs to the Mount Ogden Health and Rehabilitation Center. It will now be inspected by state officials twice as often as those not on the list. By releasing the list, the CMS hopes to get nursing homes to do the job right or get out of the business.

    Kerry Weems, acting administrator of CMS, briefed the media stating that all the SFF facilities are "chronic under performers" that "have caused actual harm to residents at some point."

    Of course, just because a nursing home is not on the list doesn't mean it is safe. I recently represented a family in a claim against another nursing home in Utah where an elderly man with Alzheimer's disease was allowed to wander unattended. He fell out of a second story window to his death, only to be found hours later. The necessary safeguards were obviously not followed.

    As a Utah attorney, I have also seen cases involving decubitus ulcers (bedsores), falls, medication errors, and other abusive and negligent behavior in Utah nursing homes. Our elderly loved ones deserve better. Reporting substandard care facilities is clearly a step in the right direction, but my experience shows there continues to be room for improvement.

Here is more from an article in the Deseret News:

"Being the sole Utah nursing home on the list doesn't mean it is or isn't the worst in the state, said Greg Bateman, long-term-care survey manager for the Utah Department of Health. CMS gave Utah a list of 15 facilities based on an undisclosed formula and asked it to pick one for consideration as an SFF program facility.

"Even though its most recent recertification survey was not very adverse, its history in the past three years included two surveys which cited 'immediate jeopardy,"' Bateman said -- including "one that showed actual harm to residents."

In its last full survey last May, Mount Ogden, 375 E. 5350 South in Ogden, was cited with several lower-level deficiencies "posing a potential for harm." Those all were corrected, he said. No facility "can go beyond six months in noncompliance" without being decertified.

Mount Ogden administrator Sam Hickcox said the serious deficiencies contributing to its poor three-year survey average occurred in 2005 and were one of the reasons Ensign Group, which owns and operates 64 facilities, bought it in July 2006. The company buys facilities "that are underperforming clinically and turns them around. That is our business. We feel like we're in the business of improving our industry," he said.

The new owners have made significant improvements, he said, including new equipment, beds and floors. The nursing home also has new management and upgraded clinical care and communication. Its census has risen from 49 to 61.

Each state is asked to look at certain facilities and suggest for the SFF list, "but that doesn't mean all of them make the list," says CMS regional spokesman Mike Fierberg. In cases where there's immediate jeopardy to a resident, it all goes out the window. Nursing homes are put on immediate termination track and are "toast unless they get this done. Stop what you're doing and fix this issue," he said.

Larry Minnix, president of the American Association of Homes and Services for the Aging and a strong advocate of pointing fingers at facilities that fail to perform well, hopes all the facilities on the list will be able to graduate.

"We're in favor of this effort," he said. Of nursing homes previously identified as poor providers, "a number have gotten better and stayed better for a period of time. There are some that haven't, and I hope CMS will cancel their contracts. We think they should be even more aggressive."

9 killed, 20 injured in crash of charter bus in southeastern Utah

Jared Faerber — Mon, 07 Jan 2008 16:09:40 GMT

     This is another tragic, and avoidable, accident.

     It is reported that nine people are dead and as many as 20 injured after a charter bus rolled several times on wet and snowy roads in Utah's Four Corners area. The crash happened Sunday, January 6, 2008, on U.S. 163 about 5 miles north of Mexican Hat, Utah. The Salt Lake Tribune reported the following:

"Utah Highway Patrol troopers are trying to determine what caused the driver to veer off the rain-slicked State Road 163 about 5 miles north of Mexican Hat about 7:30 p.m. and down a 40-foot embankment. Weather forecasters reported light rain in the area at the t "It could be speed, it could be fatigue, it could be distractions," said UHP Lt. Todd Peterson, who spent the morning investigating at the crash site. "I couldn't say for sure at this point which one it was."
    The roof of the bus tore apart as it rolled, ejecting almost all of the roughly 50 passengers and killing three people on impact, Peterson said. Four others died while being treated on the scene or transported to hospitals, and one more died while being treated at a hospital in Moab, according to UHP.
    The ninth victim, a woman, died Monday at Saint Mary's Hospital in Grand Junction, Colo., Trooper Cameron Roden told the Associated Press.
    The bus driver survived with minor injuries

Speed. Fatigue. Distractions. In my view, these are entirely unacceptable actions for a professional common carrier such as Corporate Transportation 'N Tours, an Arrow Stage Lines subsidiary, the owner/operator of the bus at issue.

Under Utah law, common carriers, such as Arrow Stage Lines, have a special relationship with their passengers. This arises because they assume responsibility for another's safety and deprive the other of his or her normal opportunities for self protection. Because of this, common carriers are held to a heightened standard of care which is “predicated on the principle that '[p]ersons using ordinary transportation devices, such as elevators and buses, normally expect to be carried safely, securely, and without incident to their destination.” Lamb v. B & B Amusements Corp., 869 P. 926 (Utah 1993).

This tragedy did not need to happen.

What to Do if You Are Injured in a Motor Vehicle Accident in Utah

Jared Faerber — Wed, 09 Jan 2008 14:13:27 GMT

Attend to Injuries

Get medical attention immediately and tell your doctors exactly how the injury occurred. Make sure to describe all symptoms and complaints.

It is best to seek attention quickly, even if you are not sure that you need it. You may be in shock and not notice your own injuries.

Make sure to follow-up with additional concerns and follow the advice of your doctor.

Be Careful About What You Say

When talking to the police or highway patrol about the accident, it is important to be truthful, but to also keep your comments minimal. Limit yourself to asking if anyone was hurt. You should NOT:

Apologize
Admit it was your fault
Say "I didn't see you" or anything of the kind

Comments like these could be taken as an admission of fault. At this stage, it is often too early to determine fault, and you do not want to risk damaging your case down the road.

Talk to no one about the accident or injuries except the police, your doctor, or lawyer.

Report the Accident

Call 911 to report the accident. Utah law requires accidents be reported immediately to law enforcement. See Utah Code Annotated § 41-6a-401. and 41-6a-401.7. This is not only required by law, it also creates written evidence of the accident and helps document fault.

Obtain Information

Obtain the name, address, insurance information, vehicle license number and driver's license number of everyone involved in the accident.
Get the names, addresses and telephone numbers of all witnesses.
Photograph the accident scene, including all vehicles involved (before repairing) and any visible injuries (e.g., cuts, bruises).

Contact an Attorney

It is important to contact an experienced attorney immediately who specializes in personal injury claims. Early legal representation can help preserve your claim and ensure the maximum recovery. If you or a loved one has been injured in a car or truck accident, contact me today, and I would be happy to talk with you for free about how I can help.

What makes a good medical malpractice case in Utah?

Jared Faerber — Mon, 07 Jan 2008 14:41:07 GMT

One of my best clients, with a very strong case, recently told me that when she first called, she wasn’t even sure her case was worth pursuing. In reality, she had a fantastic case. This became apparent to her only after discussing the matter with me.

I review numerous potential Utah medical malpractice claims for each one I take. Selecting the right cases is essential. That’s why I’m more than happy to discuss potential cases with anyone for free. I’m also not afraid to turn down cases that are just not viable. Ultimately, pursuing a weak case results in frustration for everyone involved. Of course it’s impossible to tell initially exactly how strong a case is prior to conducting discovery. Sometimes things will be discovered that weaken or strengthen a particular case. Nevertheless, careful initial screening is the key to success.

So what makes a great medical malpractice case? In theory it is simple, but it becomes quite difficult in practice. I look for:

Strong Liability

This means the proposed defendants are legally responsible for your injuries. A poor medical outcome or injury during a medical procedure, alone, is not enough to make a valid case. In a medical malpractice claim, the health care providers involved must have “breached the standard of care.” This is just a legalistic way of saying the doctors, nurses, or other providers failed to use reasonable care in treating you. In general, the more unreasonable the actions are, the stronger the claim becomes. The unreasonable care, or lack of care, must also be the cause of your injuries.

How do we determine what is reasonable in a medical context? Generally, in Utah, it requires the use of an expert witness familiar with the type of medicine involved. Occasionally, the mistake is so obvious even a lay person can tell there was medical malpractice. In these rare cases, an expert is unnecessary.

Strong Damages

Even with a clear mistake, a medical malpractice case is still not viable unless there are significant damages. A medical error that results in no harm or only slight temporary pain, is not enough to justify the cost and time involved in pursuing a claim.

How much damages are enough? How bad does the injury need to be? How many medical bills must be incurred? These are all issues that must be considered. Only an experienced medical malpractice attorney can answer these questions.

Other Factors

By this I mean other, less defined, items that may improve the value of a case. This can be things such as how likable the plaintiff is compared to the defendant. Is there any comparative fault on the part of the plaintiff? Is the proposed defendant a large corporation or a well-respected local doctor? Who are the insurance companies and defense attorneys involved?

THE BOTTOM LINE:

Many factors come in to play in making a valid malpractice claim. Strong liability and damages are essential as well as numerous other less defined factors. Do not pre-judge your potential claim. Only an attorney experienced in handling these types of cases can properly evaluate and advise you regarding a medical malpractice case in Utah.

Cryptosporidium outbreak hits Utah pools

Jared Faerber — Fri, 07 Sep 2007 08:48:53 GMT

Children under age 5 have been banned from most Utah public swimming pools in an attempt to stop the spread of cryptosporidium, a parasite that can cause severe diarrhea.

So far, the state has confirmed 422 cases of crypto, and, fortunately, no deaths.

    Cryptosporidium is found in soil, food, water or surfaces that have been contaminated with human or animal feces.

    Cryptosporidium is protected by an outer shell that allows it to survive outside the body for long periods of time and makes it very resistant to chlorine, so regular levels of chlorine in pools will not kill it. Officials have recommended pools hyper chlorinate to destroy the parasite.

    From a legal standpoint, of relevance is when the various pools knew or should have known about this problem? If it was known, were any warnings given to swimmers and their families? Is the advice of officials to hyper chlorinate and close the pools to young children being properly heeded?

The number of cases continues to rise. Let's hope it goes the other direction with the implementation of these safeguards.

The Government Won’t Pay for Some Medical Errors

Jared Faerber — Tue, 21 Aug 2007 13:50:15 GMT

Beginning next year, Medicare will stop paying for some hospital mistakes.

Under newly issued rules, the government insurance program, Medicare, will no longer pay extra to treat preventable medical complications. I believe these changes give hospitals a powerful incentive to keep patients safe.

The changes mean no extra payments to treat patients affected by:

Infections cause by prolonged use of catheters in the bladder or blood vessels, and surgical site infections after bypass surgery.

Injuries resulting from a fall in the hospital.

Reactions when transfusion patients get the wrong blood type.

Air embolism, when air invades the blood stream.

Bed sores that patients develop while in the hospital.

Objects, such as sponges or surgical tools, left in patients during surgery.

These complications are considered preventable. Medicare is moving in the right direction with these new rules. It reverses the perverse system in place now that actually rewards hospitals for making errors. Medicare typically pays hospitals much more for treating a patient whose hospitalization is complicated by one of the above-mentioned conditions than it would have if there were no such condition present.

"We think this is groundbreaking that Medicare now says, 'We're not going to pay you extra when you've done something to harm a patient,'" said Lisa McGiffert, who directs a campaign to stop hospital infections that is run by Consumers Union, based in Washington, D.C.

I think this could make a big difference. However, it does nothing to affect private insurers who continue to pay for hospital errors. Nor does it prevent Medicare or other insurance payments to the physicians who may have committed the error or contributed to it. So the physician who left an instrument in a patient can still be paid by Medicare for retrieving it in a subsequent surgery.

Avoiding Traumatic Brain Injury

Jared Faerber — Tue, 21 Aug 2007 10:41:42 GMT

A traumatic brain injury (often referred to as TBI) is an injury to the head that disrupts the normal functioning of the brain. According to a recently released study by the Utah Department of Health, each month 174 Utahn’s will suffer life-altering injuries to the brain. While severity and outcomes vary widely, TBI can affect a person’s thinking, language, memory, learning, emotions, and behavior. Even a concussion, mistakenly believed by some to be insignificant, can result in serious and permanent impairment. Some injuries can be foreseen and prevented. Much of the following advice is simple common sense. It is surprising, however, how often all of us led our guard down and act in ways that are unsafe. These 10 tips may help you or your children avoid a traumatic brain injury:

1. Always wear a seatbelt.

2. Always buckle your child into the appropriate safety seat, booster seat or seatbelt, even for very short trips. If you are unsure what type of seat to use for your child’s age and weight, check out the safety seat guide at www.usasafekids.org.

3. Don’t drive drunk, drugged, or drowsy.

4. Wear a helmet on every motorcycle, snowmobile and ATV ride, as well as for all sports that pose a risk of head injury such as football, baseball, bicycling, skateboarding, hockey, and other such activities.

5. Check for tripping hazards around the house: loose carpet, rugs, slippery surfaces, missing handrails, and electrical cords are just some of the things that can cause dangerous falls.

6. Store firearms locked and unloaded with the ammunition in a separate secure area.

7. Use nightlights in bedrooms, hallways, and bathrooms.

8. Use a sturdy ladder or stepstool to reach overhead items.

9. Take extra care when taking medications and look for side effects that may cause dizziness or otherwise increase the risk of falling. Check the medication of older adults for the same.

10. For older adults, install grab bars in the bath and shower areas and next to the toilet.

Michael Moore's latest movie, "Sicko" highlights America's Healthcare Problems

Jared Faerber — Tue, 03 Jul 2007 13:20:22 GMT

   Moore's latest documentary movie, "Sicko" opened last Friday. I haven't seen it yet, but it should be entertaining. While Moore's tactics and style may be controversial, the movie promises, at the very least, to continue the national discussion of healthcare. One such issue the movie highlights is the World Healthcare Organization's ("WHO") 2000 survey which ranks countries from best to worst in terms of healthcare. The U.S. ranks only 37th, two slots ahead of Cuba, and lower than Morocco, Oman, and many others. WHO's criteria for the rankings were: 1) Good health: "making the health status of the entire population as good as possible" across the entire life cycle; 2) responsiveness: responding to peoples' expectations of respectful treatment and client orientation by providers; and 3) fairness in financing: ensuring financial protection for everyone, with costs distributed according to one's ability to pay. Criteria number 3 almost guarantees countries such as France and Canada, with government-sponsored universal plans, the ones idealized by Michael Moore, will receive a higher ranking than the U.S.

    In any event, the U.S.'s low ranking is disturbing in light of the fact that we have the most expensive healthcare system in the world based on per capita expenditures. These excessive costs are attributed to many factors including rising costs of medical technology and prescription drugs, an aging population, and very high administrative costs resulting from a complex multi payer system. It has been estimated that between 19 and 24 per cent of the total dollars spent on healthcare in the U.S. is for administrative costs alone. See Woolhandler, Himmelstein, "The Deteriorating Administrative Efficiency of the U.S. Health Care System," New England Journal of Medicine, 324: 1253-1258 (May 2, 1991). In contrast, payments for victims of medical malpractice, including attorney's fees and costs, amounted to less than 1% of the total healthcare costs. See Kessler, Daniel P. and Mark McLellan. "The Effects of Malpractice Pressure and Liability Reforms on Physicians' Perceptions of Medical Care," Law & Contemporary Problems, Winter 1997, p. 81. Moore's solution seems to be government sponsored universal healthcare. Such systems certainly have benefits, but also numerous drawbacks including potentially substandard care and long wait times for such care.

    These issues are vital to the economic and political future of the country. They must be carefully explored and solutions must be implemented. Whatever course we decide to take, however, the rights of those injured from negligence must be protected.   In our rush to repair the system, lets take care not to re-victimize the victims of malpractice by forcing them to bear the financial burdens of the system's failures.

Medical Malpractice and Other Injuries in Perspective

Jared Faerber — Thu, 04 Jan 2007 17:01:19 GMT

The District Courts of Utah have come out with their FY2006 Caseload Statistics. www.utcourts.gov/stats/2006/district/fy2006_9.htm There were 64,074 civil case filings in 2006. Of those filings, 2,493 were classified as Tort filings (mostly personal injury). There were 230 malpractice cases filed during 2006 in Utah. That's right, 230. Ask any nurse or other health care professional how many instances of negligence they believe occurred in health care in Utah last year. If they are honest and informed, it will be far more than 230. Most studies of medical error point to huge numbers and support the proposition that the vast majority of malpractice is never known to the victim and never results in a lawsuit. For the small minority that do know what happened and take action, they face an uphill battle against damage caps (approximately $460,000 in Utah for non-economic, pain and suffering damages in Utah); forced arbitration agreements; and wealthy insurers. The next time the insurance industry and their minions try to tell you there is a "malpractice crisis" or that we need "tort reform" don't believe them. The facts simply do not support this.

There are problems with health care in this country. I do not claim to have all the answers, but I am confident that taking away malpractice victims' Constitutional right to a jury trial and fair compensation will not solve anything. It will simply shift the burden of medical mistakes to the innocent victims, while doing nothing to address the larger underlying economic problems.

How "Systems" Cause Medical Errors

Jared Faerber — Wed, 25 Oct 2006 10:49:00 GMT

In some ways, the medical system sets itself up for failure. The caring professionals involved, doctors and nurses, are sometimes placed in a terrible situation where mistakes are inevitable. For example, in a case I am currently litigating, the patient was seen at different clinics within the same practice group. Each different physician that she saw often had no access to her medical records. They had to start all over. They didn't know what tests had been ordered or performed, the results of them, or any other critical information. Is it any wonder errors result?

Another "systems" factor which leads to errors are overworked and tired health care providers. Medicare and Medicaid reimbursement to providers is too small and has not kept pace with inflation. Reimbursement provided by many health insurance companies is inadequate. The result is that doctors and hospitals must take on more and more patients for less money. Corporate owned hospitals, in an eternal quest for more profits, must cut costs every way possible. This often leads to inadequate staffing where nurses must look after far too many patients. Again, the system sets the stage for mistakes.

In the age of computers, most hospitals and physicians still use plain paper and pen to keep records, write prescriptions, and make orders. Each time these hand-written records are copied or reviewed, the potential for error exists. Medication errors are particularly common and can cause terrible injuries and death.

There are some positive signs. Here in Utah, some hospitals and have implemented electronic record keeping systems which could help reduce errors. Patients in some hospitals wear bar coded bracelets which are scanned to help insure proper medication and dosage. Institutional changes can make a dramatic difference.

For more information about medical systems and how they can be improved to reduce error, I recommend these two books: Internal Bleeding: The Truth Behind America's Terrifying Epidemic of Medical Mistakes, Robert Wachter, M.D., and Kaveh G. Shojania, M.D. and Critical Condition: How Health Care in America Became Big Business- and Bad Medicine, Donald Barlett and James B. Steele.

Top Ten Quality Indicators of An Effective Patient-Centered Physician

Jared Faerber — Mon, 16 Oct 2006 10:46:11 GMT

In an increasingly complicated and, sometimes, chaotic healthcare setting, it is important for patients to actively participate in their own care and the care of loved ones.

There are numerous traits viewed as important to experiencing a high quality of care. Highlighted below are some of the core indicators to determine if your health care provider is an effective practitioner of quality care.

Does your physician exhibit these behaviors?

1. Listens to all symptoms before making a diagnosis.

2. Is knowledgeable about the patient's condition; past and current status.

3. Is very knowledgeable about diagnosis and current treatments; staying up to date on current medications and recent research.

4. Encourages patients and family members to ask questions and participate in the care experience.

5. Gives options for solving problems and suggests ways in which patient and family member can participate in care.

6. Collaborates with patient and family member in seeking additional solutions.

7. Volunteers information about agencies that provide additional services and knows how to access those services.

8. Uses familiar terminology or carefully defines new terms; checks that patient and family member understands.

9. Takes time and does not seem rushed.

10. Follows through on care and outcomes.

Source: (This "Top Tens" and Checklist is adapted from Jeppson, E. Thomas, J. (1994). Essential Allies: Families as Advisors, courtesy of the Institute for Family-Centered Care, Bethesda, MD.

$20 Million Verdict Entered Against Allstate Insurance for Bad Faith

Jared Faerber — Mon, 09 Oct 2006 17:00:35 GMT

An Indiana jury determined Allstate Insurance Company committed bad faith in failing to pay a man for losses due to injuries and damage to his car following a car crash and awarded the man $20 Million. The jury decided Ted Fields was in bad hands after applying for property damage and medical benefits under his Allstate policy following a car crash. Fields, age 50, who is now a retired steelworker on disability, suffered spinal injuries in a 1995 car collision. The company that insured the driver who caused the accident was insolvent, so Fields' own insurance, from Allstate, was supposed to provide what is called "unininsured motorist coverage." Most Utahn's have such insurance. All Fields wanted was from Allstate was to get his car fixed from the wreck and his medical bills paid. However, Allstate refused and forced the injured man to file suit against the company for breach of the insurance contract and bad faith. The Jury found Allstate's actions resulted in Fields suffering additional medical problems including a rise in blood pressure which led to heart problems and a stroke.

Auto Accident? State Farm is not a "Good Neighbor"

Jared Faerber — Tue, 03 Oct 2006 16:46:58 GMT

Here's what the Utah Supreme Court has said about State Farm and its actions in a recent Utah case:

" We summarize here three examples from those findings of State Farm's most egregious and malicious behavior. First, State Farm repeatedly and deliberately deceived and cheated its customers . . . For over two decades, State Farm set monthly payment caps and individually rewarded those insurance adjusters who paid less than the market value for claims. Agents changed the contents of files, lied to customers, and committed other dishonest and fraudulent acts in order to meet financial goals. For example, a State Farm official in the underlying lawsuit in Logan instructed the claim adjuster to change the report in State Farm's file by writing that Ospital was "speeding to visit his pregnant girlfriend." There was no evidence at all to support that assertion. Ospital was not speeding, nor did he have a pregnant girlfriend. The only purpose for the change was to distort the assessment of the value of Ospital's claims against State Farm's insured. As the trial court found, State Farm's fraudulent practices were consistently directed to persons--poor racial or ethnic minorities, women, and elderly individuals--who State Farm believed would be less likely to object or take legal action." Campbell v. State Farm Automobile Insurance Company, 2001 UT 89,Para. 89. Click here to read the entire opinion http://www.utcourts.gov/opinions/supopin/campbell.htm

There you have it. Pretty damning evidence regarding State Farm's treatment of its own customers. If it treats its own insureds this way, imagine how it reacts to claimants seeking compensation for their injuries. Sometimes, the only way for truly injured people to get the money they both need and deserve, is through litigation. The fact remains that unrepresented parties are often treated unfairly by large insurers.

How Many Die Each Year Due to Preventable Medical Mistakes?

Jared Faerber — Tue, 03 Oct 2006 16:47:38 GMT

A frighteningly high number of people die each year due to preventable medical errors. The Institute of Medicine (IOM) report on medical errors shows that between 44,000 and 98,000 hospitalized Americans die each year as a result of preventable medical errors. A summary of the IOM report can be found here http://www.iom.edu/Object.File/Master/4/117/ToErr-8pager.pdf Preventable medical errors exact a huge cost on society. The IOM estimates the costs of errors (including additional medical treatment, lost wages, and disability) to be between $17 billion and $29 billion per year in hospitals nationwide.