The final protocol for claims related to the BP oil spill was released today by the Gulf Coast Claims Facility. Victims will choose one of the two options: 1) accept a final lump sum payment for all present and future damage in exchange for a full and final release surrendering their right to sue or 2) continue receiving quarterly interim payments based upon past damage for the that three months. If the last option is chosen, Feinburg specifically stated, “there is no guarantee that, in the future, a lump sum Final Payment will be as generous as it will be currently.” There will be an non-binding appeals process for those claimants who receive an offer of total compensation in excess of $250,000, but believe it inadequate. All claimants will be able to appeal their GCCF award to the Coast Guard and the Federal Courts. A decision regarding which option to choose should be made on a case by case basis. If you need any assistance regarding which option may be best suited for your personal and/or business claim, please contact Knox Boteler in our office. knox@botelerwolfe.com
Wednesday, November 24, 2010
Monday, November 15, 2010
Oil Spill Update for Business Owners
BP Oil Spill/Gulf Coast Claims Facility
update by Knox Boteler, Attorney at Law
By now, many Gulf Coast business owners have proceeded with or contemplated the filing of a claim for loss of business revenue with the Gulf Coast Claims Facility. Though the Feinburg Fund is in its third month of operation and the first of many deadlines are facing claimants later this month, no one is still sure what criteria is being used when administering a claim. While there have been repeated requests by our firm and others for additional information regarding the handling of claims, no response has been provided from the administrators. That said, please consider the following when making a claim against the “responsible parties.” Frankly, there are several pitfalls in the claims process that has not been communicated to the public:
Individuals and businesses may submit a claim for Emergency Advance Payment until November 23, 2010. The evaluation of an Emergency Advance Payment - up to six (6) months of losses - will, supposedly, be reviewed under a less rigorous standard than will be used for the Final Payment claim. Claimants can accept Emergency Advance Payments and reject the final payment if they find it to be unsatisfactory.
The Gulf Coast Claims Facility declared all claimants must apply for final payment of long term damages by August 23, 2013. However, we would encourage everyone to file ninety (90) days before this deadline because of concerns we have with the legal application of the Oil Pollution Act (OPA). Should you wait less than ninety (90) days from the deadline to bring a claim, you may be barred from filing a lawsuit.
Claimants accepting a final payment of long-term damages require the claimant to waive their right to sue BP or any of the parties responsible for the Gulf of Mexico spill.
Geographic proximity to the spill will not in itself prevent a legitimate claim from being processed. When submitting your claim, it may be beneficial for you to include a google earth map showing your business location. Too, it may be of benefit to include in your claim a brief description of your practice and the customers you serve.
At this point, DO NOT FILE FINAL CLAIMS. The claims process for final payments has not yet been established. Those persons and entities that have filed such claims will have no choice but to wait until those parameters have been set.
If your Emergency Advance Payment has been denied, you need to file a final claim before filing a lawsuit. It is not known whether a denial of an Emergency Advance Payment is a “denial” as defined by OPA.
A claim needs to state a specific dollar amount to meet OPA requirements. Also, be sure to include a claim not just for your business losses, but, also, the cost for assessing damages (accountant, appraiser, etc.). In addition, include an amount for PUNITIVE DAMAGES. While Feinburg has repeatedly stated the Fund will not consider punitive damages, it is necessary to include such a damage in order to prevent a waiver of such claim if a lawsuit has to be brought.
We anticipate the expiration of Emergency Advance Payment claims later this month will bring more criticism to the fund. Simply put, the Gulf Coast Claims Facility has only paid out a fraction of what is owed to Alabama businesses. Hopefully, this criticism will be to the benefit of all claimants, and we can write you with information that does not contain loopholes or pitfalls. In the meantime, for those of you that have made or will be making claims, please do not hesitate to contact us with questions regarding the claims process.
Please contact us if you believe you will need assistance in the presentation of your claim or would like further guidance. knox@botelerwolfe.com
update by Knox Boteler, Attorney at Law
By now, many Gulf Coast business owners have proceeded with or contemplated the filing of a claim for loss of business revenue with the Gulf Coast Claims Facility. Though the Feinburg Fund is in its third month of operation and the first of many deadlines are facing claimants later this month, no one is still sure what criteria is being used when administering a claim. While there have been repeated requests by our firm and others for additional information regarding the handling of claims, no response has been provided from the administrators. That said, please consider the following when making a claim against the “responsible parties.” Frankly, there are several pitfalls in the claims process that has not been communicated to the public:
Individuals and businesses may submit a claim for Emergency Advance Payment until November 23, 2010. The evaluation of an Emergency Advance Payment - up to six (6) months of losses - will, supposedly, be reviewed under a less rigorous standard than will be used for the Final Payment claim. Claimants can accept Emergency Advance Payments and reject the final payment if they find it to be unsatisfactory.
The Gulf Coast Claims Facility declared all claimants must apply for final payment of long term damages by August 23, 2013. However, we would encourage everyone to file ninety (90) days before this deadline because of concerns we have with the legal application of the Oil Pollution Act (OPA). Should you wait less than ninety (90) days from the deadline to bring a claim, you may be barred from filing a lawsuit.
Claimants accepting a final payment of long-term damages require the claimant to waive their right to sue BP or any of the parties responsible for the Gulf of Mexico spill.
Geographic proximity to the spill will not in itself prevent a legitimate claim from being processed. When submitting your claim, it may be beneficial for you to include a google earth map showing your business location. Too, it may be of benefit to include in your claim a brief description of your practice and the customers you serve.
At this point, DO NOT FILE FINAL CLAIMS. The claims process for final payments has not yet been established. Those persons and entities that have filed such claims will have no choice but to wait until those parameters have been set.
If your Emergency Advance Payment has been denied, you need to file a final claim before filing a lawsuit. It is not known whether a denial of an Emergency Advance Payment is a “denial” as defined by OPA.
A claim needs to state a specific dollar amount to meet OPA requirements. Also, be sure to include a claim not just for your business losses, but, also, the cost for assessing damages (accountant, appraiser, etc.). In addition, include an amount for PUNITIVE DAMAGES. While Feinburg has repeatedly stated the Fund will not consider punitive damages, it is necessary to include such a damage in order to prevent a waiver of such claim if a lawsuit has to be brought.
We anticipate the expiration of Emergency Advance Payment claims later this month will bring more criticism to the fund. Simply put, the Gulf Coast Claims Facility has only paid out a fraction of what is owed to Alabama businesses. Hopefully, this criticism will be to the benefit of all claimants, and we can write you with information that does not contain loopholes or pitfalls. In the meantime, for those of you that have made or will be making claims, please do not hesitate to contact us with questions regarding the claims process.
Please contact us if you believe you will need assistance in the presentation of your claim or would like further guidance. knox@botelerwolfe.com
Monday, November 8, 2010
US Supreme Court to Hear Important Case for Consumers
Class action lawsuits allow large groups of consumers to recover damages in legal matters involving smaller claims or cases. Many times the amount in controversy is too small to warrant an individual lawsuit. Such is the situation for Vincent and Liza Conception who caught AT&T overcharging sales tax on their cell phones. The amount of the overcharge was only $30.00 per phone but AT&T was apparently doing this to all its California customers. A class action lawsuit was brought against AT&T in California for all similarly overcharged customers by the Conceptions. However, in the fine print of the Conception's contract was a clause that said they would not bring a deceptive trade practices class action against AT&T and had to make any claim via arbitration. Arbitration is an extremely expensive procedure and it is not a forum that lends itself to small claims or cases.
The Federal Court in California ruled the clause to be void and AT&T has appealled to the US Supreme Court which has agreed to hear the case this week. Legal scholars believe this somewhat unknown and low profile case could be the death of consumer class actions in America if the US Supreme Court rules in favor of AT&T. For more information on this important case please see: AT&T Mobility Services vs. Conception.
If it wrong for a company to deceptively take $3,000,000 from one consumer it should be as equally wrong for them to deceptively take $30 from 100,000 consumers. It is our hope the US Supreme Court will agree with this logic, but we fear a favorable ruling for AT&T will open the door for more large corporations to take advantage of their customers.
The Federal Court in California ruled the clause to be void and AT&T has appealled to the US Supreme Court which has agreed to hear the case this week. Legal scholars believe this somewhat unknown and low profile case could be the death of consumer class actions in America if the US Supreme Court rules in favor of AT&T. For more information on this important case please see: AT&T Mobility Services vs. Conception.
If it wrong for a company to deceptively take $3,000,000 from one consumer it should be as equally wrong for them to deceptively take $30 from 100,000 consumers. It is our hope the US Supreme Court will agree with this logic, but we fear a favorable ruling for AT&T will open the door for more large corporations to take advantage of their customers.
Thursday, October 28, 2010
Justice for Sale in Alabama?
With the elections just a few days away, we'd encourage you to visit the web site Justice for Sale that chronicles the influx of large cash contributions to the Alabama Judicial elections via nondescript PAC's. While we continue to push for the non-partisan election of Alabama judges, we also think it's time for Statewide judges in Alabama on the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals and the Alabama Supreme Court to be appointed via a non-partisan committee and run for retention as opposed to election. This works well for the majority of other States and we believe such a system would better serve our citizens. However, until that time we must work within the system provided. We our endorsing and encouraging our friends and clients to vote for the following three candidates in the four statewide judicial elections next week:
- Rhonda Chambers, Alabama Supreme Court, Place 1
- Tom Edwards, Alabama Supreme Court, Place 2, and
- Deborah Bell Paseur, Alabama Court of Civil Appeals.
All of three of these candidates are highly qualified to serve the citizens of Alabama and each has received numerous endorsements from various Statewide newspapers and publications. No matter how you plan on voting next Tuesday, we hope you will take the time to cast your vote. The right to vote is an important part of the fabric of our great country and when you vote, you honor all of those people who have sacrificed so much to preserve and protect that right.
Wednesday, October 27, 2010
US Chamber of Commerce = Hypocrites
Over the past 15 years the US Chamber of Commerce has been one of the Country's most outspoken critics of the American civil justice system and "trial lawyers." Yet as you can see below from the recently released report from the American Association for Justice, the US Chamber has aggressively used litigation in our civil justice system to promote the interest of big business and insurance companies to the detriment of injury victims and consumers. So, it's OK to file mountains of civil lawsuits for big business and insurance companies but anytime an injury victim or consumer files a lawsuit they are "abusing" our civil justice system? I think if you look up the definition of hypocrite it should say, "see US Chamber of Commerce."
From the AAJ Press Release:
Washington, D.C.—Earlier this month, U.S. Chamber of Commerce President and CEO Tom Donohue called litigation “one of our most powerful tools for making sure that federal agencies follow the law and are held accountable.”
Yet ironically, the Chamber today holds its annual Legal Reform Summit – an event underwritten by its multinational corporate members that promotes undermining the civil justice system to weaken the basic legal protections of American workers and consumers.
The Chamber’s hypocrisy – blocking justice for everyday Americans while using the courts liberally for its own pro-corporate agenda – is the subject of a new report released today by the American Association for Justice (AAJ) that exposes the Chamber as one of the most aggressive litigators in Washington, entering lawsuits at a rate of over twice weekly.
“The Chamber’s ‘one rule for corporations, another rule for everybody else’ motto has come at the expense of ill-treated workers, defrauded investors and injured consumers,” said AAJ President Gibson Vance. “It readily spends millions of dollars to prevent Americans from holding wrongdoers accountable in the courtroom, and then aggressively uses the very same legal system to advance the agenda of its multinational corporate membership.”
In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security. The Chamber has: justified the actions of Wall Street banks that drove the country’s economy into turmoil; defended the most conceited and worst behaved CEOs and their most extravagant excesses; tried to force workers, instead of employers, to pay for their own safety equipment; filed numerous actions opposing any move to combat climate change; sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children; opposed measures allowing workers to receive a rest period during a full work day; fought on behalf of lead paint manufacturers found to have poisoned thousands of children; defended corporations that discriminated on the basis of race and disability; and spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.
“The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests,” said Vance. “But it must learn that this right to justice belongs not just to their organization, or big business generally, but to all Americans.”
The report, titled “The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans out of Court,” can be found at www.justice.org/USChamber.
From the AAJ Press Release:
Washington, D.C.—Earlier this month, U.S. Chamber of Commerce President and CEO Tom Donohue called litigation “one of our most powerful tools for making sure that federal agencies follow the law and are held accountable.”
Yet ironically, the Chamber today holds its annual Legal Reform Summit – an event underwritten by its multinational corporate members that promotes undermining the civil justice system to weaken the basic legal protections of American workers and consumers.
The Chamber’s hypocrisy – blocking justice for everyday Americans while using the courts liberally for its own pro-corporate agenda – is the subject of a new report released today by the American Association for Justice (AAJ) that exposes the Chamber as one of the most aggressive litigators in Washington, entering lawsuits at a rate of over twice weekly.
“The Chamber’s ‘one rule for corporations, another rule for everybody else’ motto has come at the expense of ill-treated workers, defrauded investors and injured consumers,” said AAJ President Gibson Vance. “It readily spends millions of dollars to prevent Americans from holding wrongdoers accountable in the courtroom, and then aggressively uses the very same legal system to advance the agenda of its multinational corporate membership.”
In almost every case, the Chamber’s litigation on behalf of corporations has come at the expense of Americans’ health or financial security. The Chamber has: justified the actions of Wall Street banks that drove the country’s economy into turmoil; defended the most conceited and worst behaved CEOs and their most extravagant excesses; tried to force workers, instead of employers, to pay for their own safety equipment; filed numerous actions opposing any move to combat climate change; sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children; opposed measures allowing workers to receive a rest period during a full work day; fought on behalf of lead paint manufacturers found to have poisoned thousands of children; defended corporations that discriminated on the basis of race and disability; and spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.
“The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests,” said Vance. “But it must learn that this right to justice belongs not just to their organization, or big business generally, but to all Americans.”
The report, titled “The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans out of Court,” can be found at www.justice.org/USChamber.
Wednesday, October 20, 2010
ALLSTATE FINED $10 MILLION FOR CLAIMS HANDLING PROCESS
Over the last few years many of our clients have heard us complain about insurance companies using Computer Assisted Claim Evaluation Programs when trying to determine the value of a personal injury claim. These programs receive a variety of infomation input by the claims adjuster and then return a "value" for the claim. The most infamous of these type programs is one called "Colossus" used by Allstate. The problem with these programs is that they can be easily mainpulated to make sure the "value" returned for claims in any particular area or region are unfairly low. This forces claimants to have to file lawsuits to secure full compensation or accept the low offer and suffer an economic loss.
On October 18, 2010, the New York State Insurance Department announced that Allstate Insurance Company has agreed to pay a TEN MILLION DOLLAR regulatory settlement concerning its improper use of claims handling software; Colossus. The multi-state investigation was lead by the insurance departments of New York, Florida, Illinois and Iowa and included 41 other States. According the the press release from the NYS Department of Insurance the investigation found "inconsistencies in Allstate's management and oversight of the Colossus software program. In particular, the examination found that Allstate had failed to modify or 'tune' the software in a uniform and consistent manner across its claims handling regions." Press Release.
The Alabama Department of Insurance (ADI) particpated in this investigation and settlement and, according to Ragan Ingram Chief of Staff for ADI, our State will receive $37,749.60 of the $10 million settlement. This situation again exemplifies why our State needs a "Claimants Bill of Rights" to protect individuals from over zealous insurance companies. Click here to see a sample of the Consumer Bill of Rights adopted by the Texas Department of Insurance.
Tuesday, September 7, 2010
Wolfe Gets Highest AVVO.com Rating
The internet attorney rating service AVVO.com has given Boteler & Wolfe attorney Mark Wolfe its highest rating. He received a 10.0 rating, which is the highest level available and put him in the "Superb Attorneys" category for the online rating service. Wolfe is only the second personal injury attorney in the Alabama Gulf Coast area to receive a perfect 10.0 rating. In fact he and only four other attorneys in Alabama received a 10.0 rating in the area of car accident claims and litigation and only two other lawyers in Alabama have a 10.0 rating in the area of trucking/18-wheeler collision cases. Review profile. In the past five years, Mark Wolfe has been consistently rated as one of the best personal injury attorneys in Alabama. He has maintained a Martindale-Hubbell AV rating (the highest available) since 2005, in 2008 he was only the second Alabama attorney to qualify for membership in the prestigious Academy of Trial Advocacy (membership limited to 1,000 lawyers worldwide), he has been recognized by the American Trial Lawyers Association as one of the Top 100 trial attorneys in Alabama and he has been included in the most recent edition of SuperLawyers.
Wednesday, August 11, 2010
August is Dangerous Month for Driving
Driving a motor vehicle any time can be dangerous, but there are some times that are statistically more dangerous than others. The Insurance Institute for Highway Safety spokesman, Russ Rader recently noted, “getting behind the wheel of a car is the riskiest thing most people do every day.” However, there are certain times driving is riskier than others. The following information is compiled from reports from Forbes.com and WebMD Medical News. Some of this information is common sense, such as driving at night is more dangerous than driving during the day and more crashes occur on the weekend than mid-week. With that said here are some crash facts to keep in mind:
- The National Highway Traffic and Safety Administration reports the most dangerous month to drive is August.
- Saturday is the most dangerous day to drive followed by Friday and Sunday.
- Tuesday and Wednesday are the safest driving days of the week.
- The most dangerous hours to drive on any given day are between 5:00pm and 7:00pm.
- The safest time to drive during the day is between 4:00am and 5:00am.
- July 4th is the most dangerous driving day of the year. Followed by: July 3rd, July 2nd, December 23rd ,January 1st and September 2nd.
- New Year’s Day and Halloween are the most dangerous days for pedestrians, and
- Almost half of all fatal motorcycle crashes occur in June, July and August.
Everytime you get behind the wheel of a car you are at risk. Please be a safe and courteous driver. Please use your seat belt and insist that all occupants in your vehicle use their seat belts and make sure all children are properly restrained.
- The National Highway Traffic and Safety Administration reports the most dangerous month to drive is August.
- Saturday is the most dangerous day to drive followed by Friday and Sunday.
- Tuesday and Wednesday are the safest driving days of the week.
- The most dangerous hours to drive on any given day are between 5:00pm and 7:00pm.
- The safest time to drive during the day is between 4:00am and 5:00am.
- July 4th is the most dangerous driving day of the year. Followed by: July 3rd, July 2nd, December 23rd ,January 1st and September 2nd.
- New Year’s Day and Halloween are the most dangerous days for pedestrians, and
- Almost half of all fatal motorcycle crashes occur in June, July and August.
Everytime you get behind the wheel of a car you are at risk. Please be a safe and courteous driver. Please use your seat belt and insist that all occupants in your vehicle use their seat belts and make sure all children are properly restrained.
Friday, July 23, 2010
Are You a Good Driver?
You’re Probably Not as Good of a Driver as You think You Are.
We certainly don’t want to offend anybody, but four separate studies by the Insurance Institute for Highway Safety, the National Highway Traffic Safety Administration, AAA’s Foundation for Traffic Safety and the University of California at Berkley’s Traffic Safety Center all confirm that most driver’s believe they are “above average” drivers and based upon that belief they rationalize or justify engaging in unsafe driving. The four studies confirm that almost 75% of drivers believe they are safer drivers than other drivers. Yet according to Rae Tyson of NHTSA, 95% of crashes are caused by human error. Tyson states that this over confidence in driving skills is dangerous because a driver’s false since of ability often is used to justify multitasking while driving or to engage in unsafe driving behavior. This observation is confirmed by AAA research. 82% of drivers say distracted driving is a “very serious” problem, but over half of those same drivers admit to using their cell phone regularly while they drive. 14% of those drivers even admitted to reading and sending text messages while driving! According to 75% percent of drivers, speeding is a “very serious” problem yet almost all of these same drivers admit to speeding “a little” most of the time they are driving. 20% admitted to driving at least 15 miles per hour over the speed limit on the highway and 14% admitted to doing the same on neighborhood streets! The next time you get behind the wheel of your car, just remember you may not be quite as good of a driver as you think you are....and the driver’s around you aren’t as good of drivers as they think they are either! Please be a safe and courteous driver.
We certainly don’t want to offend anybody, but four separate studies by the Insurance Institute for Highway Safety, the National Highway Traffic Safety Administration, AAA’s Foundation for Traffic Safety and the University of California at Berkley’s Traffic Safety Center all confirm that most driver’s believe they are “above average” drivers and based upon that belief they rationalize or justify engaging in unsafe driving. The four studies confirm that almost 75% of drivers believe they are safer drivers than other drivers. Yet according to Rae Tyson of NHTSA, 95% of crashes are caused by human error. Tyson states that this over confidence in driving skills is dangerous because a driver’s false since of ability often is used to justify multitasking while driving or to engage in unsafe driving behavior. This observation is confirmed by AAA research. 82% of drivers say distracted driving is a “very serious” problem, but over half of those same drivers admit to using their cell phone regularly while they drive. 14% of those drivers even admitted to reading and sending text messages while driving! According to 75% percent of drivers, speeding is a “very serious” problem yet almost all of these same drivers admit to speeding “a little” most of the time they are driving. 20% admitted to driving at least 15 miles per hour over the speed limit on the highway and 14% admitted to doing the same on neighborhood streets! The next time you get behind the wheel of your car, just remember you may not be quite as good of a driver as you think you are....and the driver’s around you aren’t as good of drivers as they think they are either! Please be a safe and courteous driver.
Wednesday, May 19, 2010
OIL SPILL UPDATE
By Knox Boteler, Attorney at Law
As the great oil spill looms off our shoreline, we continue to monitor BP’s handling of the crisis. While BP American CEO Lamar McKay stated his company will pay “all legitimate claims” for economic damages, regardless of the expense, the Oil Pollution Act of 1990 (OPA) passed by Congress after the Exxon Valdez spill caps BP’s exposure to economic damages at $75 million dollars. BP has already admitted this limit will be exceeded by claimants. Within the last several days, bills were introduced in Congress that would increase the $75 million cap. Senator Jeff Sessions (AL) has introduced one of those bills. To date, such attempts appear futile as the bills are facing opposition from big oil supporters.
Boteler & Wolfe is working toward the best solutions for our clients to overcome the caps to recover direct and indirect economic damages. In one case, a class action has been jointly filed with a law firm in Missouri on behalf of landowners in Baldwin County. If the landowners show that BP and other responsible parties have engaged in willful neglect, gross misconduct, or violations of safety rules, the $75 million dollar cap will be defeated. Another alternative for victims to consider is a claims process established by the National Pollution Funds Center (NPFC). The NPFC is responsible for the administration of claims funded by the Oil Spill Liability Trust Fund (OSLTF). This fund allows for the payment of up to $1 billion toward economic damages. Potential claimants that can utilize this process include individuals, corporations, local governments, and many others. Potential claims that can be sought against the fund are real and personal property damage, removal costs, loss of profits and earning capacity, and loss of subsistence. While this alternative to litigation requires a claimant to first seek restitution from BP and other responsible parties through a claims procedure established by the companies, the administrative process may prove beneficial for certain classes of victims.
Irregardless of the alternative a victim utilizes for restitution, BE PATIENT with the process. The responsible parties for the disaster will attempt to resolve claims quickly. Do not fall victim to the companies’ strategies and ploys. Frankly, the environmental impact to our area will not be fully understood for some time. As always, we are available to answer any questions you or your family have regarding the spill. Please feel free to email me your questions at knox@botelerwolfe.com or contact the office.
Irregardless of the alternative a victim utilizes for restitution, BE PATIENT with the process. The responsible parties for the disaster will attempt to resolve claims quickly. Do not fall victim to the companies’ strategies and ploys. Frankly, the environmental impact to our area will not be fully understood for some time. As always, we are available to answer any questions you or your family have regarding the spill. Please feel free to email me your questions at knox@botelerwolfe.com or contact the office.
Tuesday, March 23, 2010
Delay Deny Defend
CNN.com recently reported on the Delay, Deny and Defend mentality of insurance companies when confronted with small or "minor" injury claims. Read the entire article here. These tactics are even more prevalent in Alabama where laws overwhelmingly favor insurance companies and our insurance regulations do nothing to protect insurance claimants.
In response to these hardball tactics, several States have adopted a "Claimant's Bill of Rights" that requires insurance companies to deal in good faith with claimants. They have also adpoted laws that penalize insurance companies for unneccesary delays and in some cases require the insurance companies to pay the claimants legal fees. So far, no such legislation is on the horizon for insurance claimants in Alabama.
Wednesday, February 17, 2010
Why are Medical Malpractice Cases so Difficult in Alabama?
by Mark Wolfe, Attorney at Law
DISCLAIMER: The following material is being provided as a courtesy and without remuneration. It is not intended to be a commentary on the merits of any potential medical malpractice claim or case. If you believe you have been the victim of medical malpractice, please consult with an experienced medical malpractice lawyer.
In Alabama medical malpractice cases are one the most difficult type of tort cases to successfully prosecute. From 2004 through 2008 health care providers won almost 80% of the medical malpractice cases tried by juries in Alabama. Besides being difficult to win at trial, many medical malpractice cases are dismissed by the Court before a jury even gets a chance to hear or decide the case. From 2004 through 2008 171 medical malpractice cases were dismissed in favor of the health care providers by Summary Judgment. The reason these cases are so difficult for victims is because Alabama evidentiary and procedural laws favor health care providers and make it difficult for a malpractice victim to succeed in a civil lawsuit. Yes, you hear doctors and the medical community raise concerns over the high cost of their malpractice premiums and they blame Plaintiff lawyers and lawsuits for these high premiums. But the truth is their gripe should be with the insurance companies who continue to claim “frivolous” lawsuits are the reason for these high premiums. As you will see from the information below, Alabama laws make it almost impossible for a frivolous medical malpractice case to even get through the Court house doors. These difficulties also explain why some attorneys in Alabama often just summarily dismiss calls from people who believe they have been the victim of malpractice without offering any meaningful explanation as to why no viable case exists.
Often times people will call an attorneys office simply wanting them to just to write a letter to the doctor’s insurance company to obtain a settlement for their harm without filing a lawsuit. But the insurance companies who provide malpractice insurance to doctors and hospitals know how difficult these type claims or cases are to prove under Alabama law. That is why they rarely offer compensation to people who believe they have been the victim of malpractice without full and complete litigation. Simply put, they know medical malpractice cases are very expensive and costly to prove and therefore they are not willing to settle until extensive and expensive litigation has been undertaken. But why are these cases so expensive and difficult?
Why are Medical Malpractice cases so expensive?
Medical malpractice is the failure of a health care provider to follow the appropriate standard of care (breach of a duty) which causes a harm or death. This sounds simple enough until you look at what is required to meet this definition. The victim must “prove by expert testimony” the standard of care which was breached and that the failure to follow that standard of care probably caused the injury or harm. This means no matter how straight forward the alleged malpractice may seem, expert testimony is needed to support the malpractice claim. Furthermore expert testimony is needed to establish the causation of the injury or harm. Experts must be equally or similarly qualified as the healthcare provider in question. Basically very few if any local doctors are willing to testify against another local doctor. This means victims must usually secure the services of an expert from outside the local area and these experts can be very expensive. A preliminary retainer for a basic medical record review can easily cost $10,000.00. These preliminary expert reviews usually are done for the basic purpose of establishing if a potential malpractice case can move to the next level of investigation and warrant further review by experts in a specific area or related to a specific issue.
Further adding to the expense and cost of a medical malpractice case is Ala Code § 6-5-551. This statutory law requires that a medical malpractice lawsuit include in the Complaint “a detailed specification and factual description of each act and omission alleged by plaintiff [victim] to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time and place of the act or acts.” In practical application this means victims of alleged malpractice must have a detailed expert opinion before drafting and filing a medical malpractice lawsuit. Given the complexities of medicine and medical care, it is often necessary to have two or three experts in order to comply with this statute. Again, more expenses. The statute further states that a Complaint which does not comply with these requirements “shall be subject to dismissal for failure to state a claim upon which relief may be granted.”
What all of this means is that Alabama law basically requires victims and their attorneys to undertake very expensive investigation procedures before ever trying to bring a medical malpractice case into Court. Most attorneys in Alabama who handle personal injury matters, including medical malpractice cases, do so on a contingency fee agreement (a percentage of the recovery) and they advance expenses for clients related to the prosecution of that case. These costs include expert fees. But the cold hard reality is the case must warrant the risk of these expenses. It does not make economical sense to advance $50,000 to $100,000 in litigation expenses if the probable recovery in the case is not significant or is not even going to cover the expenses of prosecuting the case. Medical malpractice insurance companies know this and that is the main reason victims get the cold shoulder from them. This is also the reason they pay little heed to victims who say “I’m going to get a lawyer and sue the doctor!”
Why are Medical Malpractice cases so difficult?
Medical care is a complex blend of sciences. Biology, chemistry, anatomy and physiology all factor into the healing arts. These complexities often make issues of causation complicated to prove. Add to this that the standard of care of what should or should not be done in a particular medical situation is not always as clear as we would like it to be and you can see why medical malpractice cases can be difficult to prove. The mere fact that another doctor would have done something different or opted for another treatment protocol or procedure in and of itself is not evidence of malpractice. The treatment or procedure in question must be a deviation from the applicable standard of care, i.e., no reasonable health care provider would have done it that way and the harm would not have occurred if there had been no breach or deviation from the acceptable standard of care. What follows is a brief summary of Alabama laws that apply to medical malpractice cases.
Higher burden of proof: Unlike most civil lawsuits in Alabama which simply require proof to the jury’s reasonable satisfaction, medical malpractice cases require proof by substantial evidence.
Alternative methods of treatment: The mere fact that an alternative method of treatment would have brought about a better result is not evidence of malpractice if the method of treatment in issue was within the reasonable standard of care.
Bad result or outcome: A bad result or outcome from a medical procedure is not malpractice or evidence of malpractice if the health care provider followed the standard of care.
Informed consent to a known material risk of the procedure: If the alleged harm is the result of a known material risk of the procedure and the patient consented to the procedure and the health care provider followed the appropriate standard of care, then there is no malpractice. Even if consent to the procedure is not obtained, Alabama law recognizes implied consent to treatment if the patient knew about the material risks of the treatment.
Limitation on time for commencement of action. All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
In summary.
Alabama laws and the complexity of medical care make medical malpractice cases difficult to win in our State. It is often discouraging for people who believe they have been the victim of medical malpractice to get attorneys to take the time to explain why medical malpractice cases are so difficult to pursue in Alabama. Also, sometimes victims don’t understand all the hurdles that have to be cleared by a lawyer before he or she can say whether or not a viable medical malpractice claim exists. It is our hope this article has helped provide a better understanding of these issues.
DISCLAIMER: The following material is being provided as a courtesy and without remuneration. It is not intended to be a commentary on the merits of any potential medical malpractice claim or case. If you believe you have been the victim of medical malpractice, please consult with an experienced medical malpractice lawyer.
In Alabama medical malpractice cases are one the most difficult type of tort cases to successfully prosecute. From 2004 through 2008 health care providers won almost 80% of the medical malpractice cases tried by juries in Alabama. Besides being difficult to win at trial, many medical malpractice cases are dismissed by the Court before a jury even gets a chance to hear or decide the case. From 2004 through 2008 171 medical malpractice cases were dismissed in favor of the health care providers by Summary Judgment. The reason these cases are so difficult for victims is because Alabama evidentiary and procedural laws favor health care providers and make it difficult for a malpractice victim to succeed in a civil lawsuit. Yes, you hear doctors and the medical community raise concerns over the high cost of their malpractice premiums and they blame Plaintiff lawyers and lawsuits for these high premiums. But the truth is their gripe should be with the insurance companies who continue to claim “frivolous” lawsuits are the reason for these high premiums. As you will see from the information below, Alabama laws make it almost impossible for a frivolous medical malpractice case to even get through the Court house doors. These difficulties also explain why some attorneys in Alabama often just summarily dismiss calls from people who believe they have been the victim of malpractice without offering any meaningful explanation as to why no viable case exists.
Often times people will call an attorneys office simply wanting them to just to write a letter to the doctor’s insurance company to obtain a settlement for their harm without filing a lawsuit. But the insurance companies who provide malpractice insurance to doctors and hospitals know how difficult these type claims or cases are to prove under Alabama law. That is why they rarely offer compensation to people who believe they have been the victim of malpractice without full and complete litigation. Simply put, they know medical malpractice cases are very expensive and costly to prove and therefore they are not willing to settle until extensive and expensive litigation has been undertaken. But why are these cases so expensive and difficult?
Why are Medical Malpractice cases so expensive?
Medical malpractice is the failure of a health care provider to follow the appropriate standard of care (breach of a duty) which causes a harm or death. This sounds simple enough until you look at what is required to meet this definition. The victim must “prove by expert testimony” the standard of care which was breached and that the failure to follow that standard of care probably caused the injury or harm. This means no matter how straight forward the alleged malpractice may seem, expert testimony is needed to support the malpractice claim. Furthermore expert testimony is needed to establish the causation of the injury or harm. Experts must be equally or similarly qualified as the healthcare provider in question. Basically very few if any local doctors are willing to testify against another local doctor. This means victims must usually secure the services of an expert from outside the local area and these experts can be very expensive. A preliminary retainer for a basic medical record review can easily cost $10,000.00. These preliminary expert reviews usually are done for the basic purpose of establishing if a potential malpractice case can move to the next level of investigation and warrant further review by experts in a specific area or related to a specific issue.
Further adding to the expense and cost of a medical malpractice case is Ala Code § 6-5-551. This statutory law requires that a medical malpractice lawsuit include in the Complaint “a detailed specification and factual description of each act and omission alleged by plaintiff [victim] to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time and place of the act or acts.” In practical application this means victims of alleged malpractice must have a detailed expert opinion before drafting and filing a medical malpractice lawsuit. Given the complexities of medicine and medical care, it is often necessary to have two or three experts in order to comply with this statute. Again, more expenses. The statute further states that a Complaint which does not comply with these requirements “shall be subject to dismissal for failure to state a claim upon which relief may be granted.”
What all of this means is that Alabama law basically requires victims and their attorneys to undertake very expensive investigation procedures before ever trying to bring a medical malpractice case into Court. Most attorneys in Alabama who handle personal injury matters, including medical malpractice cases, do so on a contingency fee agreement (a percentage of the recovery) and they advance expenses for clients related to the prosecution of that case. These costs include expert fees. But the cold hard reality is the case must warrant the risk of these expenses. It does not make economical sense to advance $50,000 to $100,000 in litigation expenses if the probable recovery in the case is not significant or is not even going to cover the expenses of prosecuting the case. Medical malpractice insurance companies know this and that is the main reason victims get the cold shoulder from them. This is also the reason they pay little heed to victims who say “I’m going to get a lawyer and sue the doctor!”
Why are Medical Malpractice cases so difficult?
Medical care is a complex blend of sciences. Biology, chemistry, anatomy and physiology all factor into the healing arts. These complexities often make issues of causation complicated to prove. Add to this that the standard of care of what should or should not be done in a particular medical situation is not always as clear as we would like it to be and you can see why medical malpractice cases can be difficult to prove. The mere fact that another doctor would have done something different or opted for another treatment protocol or procedure in and of itself is not evidence of malpractice. The treatment or procedure in question must be a deviation from the applicable standard of care, i.e., no reasonable health care provider would have done it that way and the harm would not have occurred if there had been no breach or deviation from the acceptable standard of care. What follows is a brief summary of Alabama laws that apply to medical malpractice cases.
Higher burden of proof: Unlike most civil lawsuits in Alabama which simply require proof to the jury’s reasonable satisfaction, medical malpractice cases require proof by substantial evidence.
Alternative methods of treatment: The mere fact that an alternative method of treatment would have brought about a better result is not evidence of malpractice if the method of treatment in issue was within the reasonable standard of care.
Bad result or outcome: A bad result or outcome from a medical procedure is not malpractice or evidence of malpractice if the health care provider followed the standard of care.
Informed consent to a known material risk of the procedure: If the alleged harm is the result of a known material risk of the procedure and the patient consented to the procedure and the health care provider followed the appropriate standard of care, then there is no malpractice. Even if consent to the procedure is not obtained, Alabama law recognizes implied consent to treatment if the patient knew about the material risks of the treatment.
Limitation on time for commencement of action. All actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act, or omission, or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission, or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date.
In summary.
Alabama laws and the complexity of medical care make medical malpractice cases difficult to win in our State. It is often discouraging for people who believe they have been the victim of medical malpractice to get attorneys to take the time to explain why medical malpractice cases are so difficult to pursue in Alabama. Also, sometimes victims don’t understand all the hurdles that have to be cleared by a lawyer before he or she can say whether or not a viable medical malpractice claim exists. It is our hope this article has helped provide a better understanding of these issues.
Thursday, January 14, 2010
MASS TORT UPDATE
Mass Tort litigation refers to issues in which a company or
individual does harm to a large number of people or their
property as a result of an action or product. Cases in this
practice area range from defective products, such as
pharmaceutical drugs and building products, to large “manmade”
disasters such as plane crashes and chemical plant
explosions. While M & W does not commonly practice in the
area of mass tort litigation, the firm does assist many with
locating experienced legal representation in this area. Many
law firms are advertising for Mass Tort cases but many of
these law firms are not actually handling the claims or
litigation. It’s important for the victim to hire an experienced
law firm related to a particular claim or case. Recently, our
office has assisted victims with questions regarding the
following products:
Chinese Sheetrock/Drywall - Homes and buildings
constructed between 2005 - 2007 and having recurring A/C
problems and/or electrical problems, may have been built
with Chinese sheetrock or drywall. It is suspected that
chemicals in the defective drywall are causing the
problems. If Chinese drywall was used in the construction
of your home or building, it will be necessary to remove all
sheetrock and replace all metal wiring. A certified Chinese
drywall remediation contractor should be used, and the
drywall should be properly disposed in a hazardous
substance facility.
Yaz (drosperinone & ethinyl estradiol) - The New York
Times recently published a major news story on the
growing safety concerns with Yaz. Numerous lawsuits have
been filed against Bayer HealthCare Pharmaceutical for the
birth control drug Yaz. Lawsuits and claims have also been
filed related to Yasmin and Ocella. Yaz, Yasmin and Ocella
birth control pills all contain drospirenone, a synthetic form
of progestin which works in combination with ethinyl
estradiol (estrogen) to prevent pregnancy. Drospirenone is
not contained in other forms of birth control and is believed
to be the major cause of side effects from Ocella, Yasmin
and Yaz. Two recent case-control studies published in the
British Medical Journal show that patients on the birth
control pills containing drospirenone have a 200% higher
risk of serious injury than those patients using first or
second generation oral contraceptives.
Bexta (valbecoxib) - used as treatment for mild to severe
arthritis (osteoarthritis & rheumatoid arthritis) and other
chronic pain. Bextra has been linked to heart attacks,
strokes, gastrointestinal problems, and Steven Johnson
syndrome, a potentially fatal skin condition. This drug was
recalled in 2005.
Avandia (rosiglitazone) - was prescribed to control blood
sugar in adults with Type 2 Diabetes. The FDA has
monitored several heart related adverse events associated
with Avandia, such as fluid retention, edema and congestive
heart failure. The most recent labeling change included a
new warning about a potential increase in heart attacks and
heart related chest pain in some individuals.
Reglan - Reglan is a drug used to treat gastrointestinal
problems caused by gasteroesophageal reflux (GER) and
gasteroesophageal reflux disease (GERD) in adults and
children. Reglan has a number of serious potential side
effects including Neuroleptic Malignant Syndrome, Tardive
Dyskinesia and Tardive Dystonia. Reglan side effects
appear to increase with prolonged use.
Asbestos - continues to bring serious illnesses from
exposure in the 1940s and 1950s. The most common
types of illnesses directly associated with asbestos are:
mesothelioma, lung cancer, asbestosis, throat cancer,
colon cancer, and stomach cancer. Asbestos exposure
could have occurred in any number of occupations,
including shipyard workers, brake mechanics, factory
workers, construction workers, power plant workers and
refinery workers. Veterans, particularly those who served
in the U.S. Navy, may now bill ill because of asbestos.
If you, or a friend or family member, may have a mass tort
claim, please contact Knox Boteler at M&W to discuss
your case and for assistance in finding the right law firm
for your particular claim or case. There is no charge for
consultations at M&W. 433-7766, also toll free 1 866 975-
7766 or visit our web site and blog for regular Mass Tort
updates: www.moore-wolfe.com.
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