July 2008

In the "be careful what you wish for" category, I got word today of appointment to the Georgia Courts Automation Commission. The enacting legislation in 1990 authorized the Commission to:

  • Define, implement, and administer a state-wide courts automation system;
  • Coordinate and cooperate with the state’s chief information officer with regard to planning, implementation, and administration of a state-wide courts automation system to take advantage of existing state resources where possible;
  • Receive electronic data from the civil case filing and disposition forms that are required to be filed in civil cases and that are transmitted to the commission by the Georgia Superior Court Clerks’ Cooperative Authority in a format and media agreed to by the commission and the authority;
  •  Compile the civil filings and dispositions data, and provide such data to the Administrative Office of the Courts;
  •  Participate in agreements, contracts, and networks necessary or convenient for the performance of these duties and for the release of the information from civil case filing and disposition forms;
  •  Administer federal, state, local, and other public or private funds made available to it for implementation of the courts automation system;
  • Coordinate state-wide strategies and plans for incorporating county and local governments into the courts automation system, including review of requirements of the several state agencies for documents, reports, and forms and the consolidation, elimination, or conversion of such documents, reports, and forms to formats compatible with electronic transmittal media;
  •  Establish policies and procedures, rules and regulations, and technical and performance standards for county and local government access to the courts automation system network; and
  • Offer advisory services to county and local governments to assist in guiding their efforts toward automating their court procedures and operations.

Since a high percentage of my work is in federal courts where online civil filing is universal and relatively user-friendly, I’ve grown accustomed to being able to file a pleading electronically and have it on the judge’s computer almost instantly.  Naturally, I would love to have the same thing in the state courts where I otherwise prefer to practice.  But online civil filing is just one piece of the puzzle.  An old friend who is a Superior Court judge told me recently of his adventures trying to automate his court where the far greater portion of the  caseload involves divorce, child support, criminal prosecutions, and other matters, many of which are filed without an attorney.  

To bring all the multiple courts in 159 Georgia counties into the 21st century is quite a challenge — technological, financial and political. It will not happen overnight.

While over half my practice involves truck accident litigation in Georgia, I have also done some disability insurance bad faith litigation and participated in one long products liability trial in Las Vegas. Therefore, this story of a disability insurance bad faith verdict in Las Vegas caught my eye.

Last week in federal court in Las Vegas, a jury returned unanimous verdicts against Paul Revere Life Insurance Company and UnumProvident Corporation (Unum Group) in the partial retrial of a lawsuit originally tried to verdict in 2004. In the 2004 trial, the jury awarded $1.6 Million in compensatory damages and $10 Million in punitive damages to G. Clinton Merrick in connection with the insurers’ denial of his disability claim. The insurers appealed and the punitive award was ultimately sent back for retrial before a new jury. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, C.A.9 (Nev.), 2007.

In last week’s verdicts, the jury ordered Paul Revere Life Insurance Co. to pay $24 Million and UnumProvident Corporation was ordered to pay $36 Million. The punitive award of $60 Million is six times the previous award that had been appealed by the insurers following the 2004 trial.

The plaintiffs were represented by Rick Friedman, author of two excellent books for trial lawyers, Rules of the Road and Polarizing the Case.  He alleged that improper claims handling practices begun at Provident were brought to Paul Revere and influenced its claim handling with respect to Merrick’s claim both before the initial denial and afterward. These practices at the Unum Group of disabi lity insurers have been the subject of media scrutiny including expose’s on 60 Minutes and Dateline NBC as well as in multiple governmental investigations. According to Friedman, "the verdicts will keep coming until their practices change."

As an Atlanta lawyer handling mostly catastrophic truck wreck cases, I tend to view doctors more as friends than adversaries.  However, the opinions of some notwithstanding, they are as human as the rest of us.

The X-Ray Technicians blog recently posted a list of medical procedures with very high profit margins, suggesting that at least some of them may be overutilized.  As consumers of medical services, we should be alert to wastes of money, whether our own or the insurance company’s.  Some of the items on the list have the smell of frivolity, e.g, medi-spa treatments, chemical skin peels and botox injections.  But if I ever need it, I don’t want any skimping on spine surgery (been there, done that), heart surgery, diagnostic imaging and chemo. And I can tell you that the cardiac scan sure gave me a lot of peace of mind.

  1. Medi-spa treatments: Spa treatments are spa treatments, whether you’re in a medical setting or not. The convenience factor and implied credibility of a medi-spa, however, means you’ll pay a lot more.
  2. Mammogram: This high cost screening procedure has been found to be ineffective and can even spread malignant cells. The Cancer Prevention Coalition recommends clinical and self-exams as an effective low cost alternative.
  3. Physician dispensed prescriptions: Doctors can make thousands of dollars a year dispensing medication out of their offices, and maintenance medications are especially profitable.
  4. Chemical skin peels: In 2003, chemical peels created an annual gross of more than $578 million in the United States. This highly elective surgery commands higher pricing than low demand, complex procedures. Chemical peels are almost never covered by insurance.
  5. Laser surgery: Laser-assisted surgery is a cash cow for both doctors and laser manufacturers.
  6. Cardiac catheterization: Many medical centers find that they have a high return on investment of an arterial closure device that facilitates cardiac catherization.
  7. Holistic medicine: Procedures such as acupuncture massage, and other alternative therapies are very lucrative, with a high margin of revenue when compared with the physician’s time spent.
  8. Gastric bypass: Gastric bypass centers are popping up all over the country because obesity surgery is a high-margin business. Even better, it’s often fully covered by insurance.
  9. Glasses and contacts: The glasses and contacts that you wear every day are a high-margin, repetitive product that makes a lot of money.
  10. Radiopharmaceuticals: These therapeutic and diagnostic molecular imaging radioactive pharmaceuticals present a profitable venture for medical practicioners.
  11. Heart scans: Cardiologists make millions by offering scans to baby boomers concerned with early screening.
  12. Spine surgery: Sine surgery isn’t generally regarded as a high-volume, high-profit procedure, but it is moving in that direction. The Medical District Surgery Center in Last Vegas reports that doctors who perform spinal surgery are reimbursed from $3,000 to $35,000 per case.
  13. Heart surgery: Heart surgery is an incredibly profitable procedure. So profitable, in fact, that a hospital in California carried out hundreds of heart operations instead of simpler, cheaper alternatives.
  14. Hysterectomy: Hysterectomy is a high paid surgery, and it is a relatively fast procedure. Many women undergo hysterectomies to take care of fibroids and other reproductive troubles, when there are alternative procedures that are not as drastic and profitable.
  15. Osteoporosis screening: This diagnostic procedure is a profit center for doctors, with an aging population that needs to be screened and insurance companies that are willing to reimburse generously.
  16. Fertility treatments: Many doctors who offer fertility treatments enjoy high profits from their work, some of them even earning a commission for finding egg donors.
  17. Circumcision: Circumcision create a billion-dollar a year industry. This unnecessary surgery is often recommended because it will prevent a variety of ills, however they have been largely discredited.
  18. Chemotherapy drugs: Oncologists almost always sell chemotherapy drugs, which is a highly profitable source of revenue. If you feel that you’re not getting the right treatment for your cancer or you’re being treated with unnecessary chemotherapy, get a second opinion.
  19. 24-hour access: Doctors can charge $3,000 or more every year by offering unlimited 24-hour access to themselves. So if you need help in the middle of the night, you’re going to pay for it.
  20. Lab work: Some doctors can earn as much as $2.3 million every year just by running a lab in the office. This is especially profitable for practices that have patients that require bloodwork on a constant basis, like diabetics.
  21. Outpatient procedures: Just about any surgery or procedure that’s performed on an outpatient basis is incredibly profitable because you can be discharged quickly.
  22. Lasik: Lasik is a popular and profitable surgery, although it’s almost never paid for by insurance. This expensive procedure is responsible for a significant jump in the compensation of most opthamologists.
  23. Diagnostic imaging: Procedures like CT, ultrasounds, and MRI will boost your doctor’s bottom line. An especially profitable imaging procedure is X-ray, because it’s cheaper to execute.
  24. Botox injections: These aesthetic injections are profitable because they’re in high demand, and also because you’ll need to make a number of repeat visits for follow-up injections every few months.
  25. Heart monitoring: Doctors can order devices like the Holter monitor without a huge investment, and reap large financial rewards for offering the service.

A new Alabama law increases the minimum automobile liability insurance coverage to equal what has long been required in Georgia — to $25,000 in coverage for a single injury or death, $50,000 for multiple injuries or deaths, and $25,000 for property damage.  Alabama motorists will be required to comply with the new limits when they renew their current policies.

After traumatic brain injury, it is critically important to immediately begin nutritioal supplementation, by a gastric tube or PIC line if necessary.  According to a recent study from New York Presbyterian Hospital, without gastric feeding within the first 5-7 days of suffering their injury, TBI patients had a two- and four-fold higher likelihood of death. For every 10kcal/kg decrease in caloric intake there  was  a 30–40 % increase in mortality rate. The best outcomes for patients with TBI were when patients received a minimum of 25kcal/kg each day.  Unfortunately, the researchers found that as many as 62% of patients studied never met this level of caloric intake.

Though my accident and injury law practice is in Atlanta, Georgia,  I recently spent ten days in southern California, where I saw the heavy marketing for hands-free devices for cell phone due to the new law that went into effect on July 1.   In California, it is now against the law to drive a vehicle using a handheld cell phone, or for drivers under 18 to use a cell phone at all while driving. There are exceptions for emergencies, including calling public safety agencies or health-care providers. 

One young driver when asked by the San Jose Mercury News  if she would comply with the new law, responded, "Of course not. I’ll just drop my phone into my lap when a cop drives by."

The fine is $20 for the first offense and $50 for subsequent convictions. With additional fees, the total fines will cost $75 for a first-time violation and $175 each for subsequent offenses.

A  recent study by the Public Policy Institute of California that  estimated the hands-free provision could save up to 900 lives per year in California.

A California Highway Patrol spokesman said that said drivers who don’t have hands-free devices should not pull over on the freeway shoulder to place or receive calls or text messages. Rather, he said motorists should exit the freeway and park where appropriate. The CHP also discourages citizens from calling 911 to report other motorists holding their cell phones while driving because it will tie up phone lines for emergencies.

As an attorney representing citizens in cases of catastrophic injury, I depend upon courts being fair, evenhanded and impartial.  Georgia judges are relatively nonpolitical and fair to both sides. An analysis of the Mississippi Supreme Court shows how bad it can get when courts become politicized. 

According to an article by Alex Alston of the Jackson Clarion-Ledger, over the past four and one-half years the Mississippi Supreme Court affirmed 100% of defense verdicts in favor of corporations, hospitals, and insurance companies, but overturned 88% of jury verdicts that had been won in trial courts by negligence or fraud.

The U.S. Chamber of Commerce and insurance companies should be ecstatic over this state of affairs. Think of the money it saves the insurance companies not to pay a claim, knowing they are safe with the state Supreme Court.

But the U.S. Chamber of Commerce, a lobbying arm of Big Business which pours millions into judicial campaigns, is still not satisfied. In a recent 37-page report, entitled Lawsuit Climate 2008, the Chamber ranks Mississippi as the 48th worst legal climate in the nation.

Therefore, one can expect the Chamber and its powerful allies to pour millions more into the judicial campaigns of our Supreme Court justices coming up for election in November to close any chance of victory for a poor maimed victim who has successfully worked his way through the judicial system to the Supreme Court. It is only then that these powerful entities will have a complete victory over anyone bold enough to think he has a claim for negligence or fraud.

How can it be that during the last 4 1/2 years powerful corporations, hospitals, and insurance companies have prevailed in the state Supreme Court in nearly every case? Can an injured plaintiff ever be right?

Why is it that in Mississippi and some other states,  appellate courts have become so heavily politicized, and now hostile to injured citizens, while Georgia has avoided that fate?  One explanation is that trial lawyers in Georgia years ago resisted the temptation to politicize the courts. The judges for the most part remained even-handed, not overly aligned with either side in tort litigation.  Then, when those who have funded political assaults on state Supreme Court justices around the country tried to pick off a couple of our Georgia jurists, those very well-funded efforts failed decisively.  This year, while there are numerous competitive candidates for an open Court of Appeals seat, there are no challengers to our moderately conservative Supreme Court justices who are up for re-election.

To preserve an independent, impartial judiciary, it is essential that both sides of the "tort wars" avoid excessively politicizing the courts, and maintain open communication between the trial bar and the business community. We must preserve the American ideal that no faction should control the courts in order to assure that everyone has access to a fair hearing.