Mr. O'Donnell recently successfully concluded an insurance "bad faith" case against Allstate Insurance Company. After a two-week trial, the jury found that Allstate had failed to disclose and pay Mr. O'Donnell's client $100,000 in Underinsured Motorist Coverage that was available from a prior class action settlement. The jury not only awarded Mr. O'Donnell's client the underlying $100,000, but also awarded an additional $300,000 for financial distress resulting the delayed payment of the claim. The jury further found that Allstate had acted with reckless disregard of its insured's interests. In Alaska, a jury can only hear evidence of the defendant's financial condition, and determine the amount of a punitive damage award, after first finding that the plaintiff is entitled to an award of punitive damages. In that situation, the jury reconvenes to hear evidence of the defendant's financial condition. The case settled here for a confidential amount the morning that the punitive damage phase of the trial was to begin with plaintiff's CPA expert witness about to testify that Allstate made $2.4 billion last year. Mr. O'Donnell has handled, and continues to handle, numerous insurance "bad faith" cases against Allstate. The attorneys at the Alaska Personal Injury Law Group, including Mr. O'Donnell, have extensive experience with claims against insurance companies for failing to fulfill the special fiduciary duties they owe their insureds.
Over the years we have handled numerous "insurance bad faith" claims against auto insurers. These cases often involve situations where, following a serious auto accident, the insurance company fails to disclose and pay all the insurance coverage that is owed to the injured insured. We have seen that auto insurers often treat insureds as if they are adverse parties. They leave it up to the injured person to figure out which insurance policies apply. They leave it up to the injured insured to figure out what benefits they are entitled to under a 30-page or longer fine print contract. This approach to claims handling is both improper and illegal. Insurance companies owe their insureds an obligation of good faith and fair dealing. Alaska insurance regulations specifically require insurance companies to "fully disclose" to insureds "all relevant benefits and other provisions of coverage under which a claim may be covered."
Determining what insurance policies and what coverages apply is often a complicated task, particularly in the event of a death or a serious injury. In a recent case, Allstate's handling of a claim where a woman's husband died in a head-on collision came to our attention many years after the fact. Our investigation determined that Allstate had denied underinsured motorist (UIM) coverage to the widow under a second household auto policy through a tortured and self-serving "interpretation" of the policy that the Allstate claims managers never disclosed to the widow. Indeed, Allstate never even told the widow (who was not represented by an attorney) about the possibility of coverage under this policy. After Allstate's conduct came to light and we filed suit, the court granted summary judgment in the widow's favor ruling that a "coverage determination based on arcane legal doctrine [followed by Allstate] is at odds with Alaska's reasonable-lay-interpretation doctrine, which expresses clear Alaskan public policy." The moral of the story is that unfortunately there is a need, in the event of a serious injury or death, to verify that you are actually receiving the "Good Hands" treatment your insurer promised and is required to provide as a matter of Alaska law.
For more than 40 years, CT scanning has been an essential tool in medical diagnostics. While the imaging technique has allowed doctors to obtain images of a patient's heart, brain, abdominal organs, and vasculature, its effectiveness is reduced whenever a patient moves during the imaging process--even the slightest movement can cause blurriness in the images. GE's new Revolution CT now allows doctors to image the entirety of a patient's organ structures literally within the span of a single hearbeat. This remarkable feat is made possible using high-resolution cameras and motion correcting technology similar to image stabilization features in personal cameras. This innovation was announced by GE last week at the 99th annual Radiological Association of North America conference, and will soon be made to hospitals all across the country.
Source: GE Reports at: www.gereports.com/inside-knowledge/.
Stryker Orthopedics has recalled its Rejuvenate and ABG II hip implant components because they are shedding metal particles that cause two different types of medical concerns. First, the particles contain toxic levels of cobalt and chromium that cause local tissue reactions. These reactions include pain at the implant site, which can limit the function of the implant. These tissue changes can cause fluid collections that resemble tumor tissue (pseudotumor), and local tissue death (necrosis). Another type of tissue change is referred to as aseptic, lymphocyte-dominated vasculitis-associated lesions (ALVAL). These tissue changes can also lead to painful and expensive hip dislocations. Osteolysis can sometimes be triggered, which is a type of bone loss. Such bone loss can occur as early as 12 months after implantation, and it is usually progressive. Osteolysis often does not cause symptoms. However, it can lead to implant loosening and bone fractures that create serious medical problems.
The second concern is that these toxic metal particles infiltrate the blood stream and cerebrospinal fluid, thereby traveling throughout the body to seed into distant tissues and organs. Cobalt exposure is known to cause neurologic (central and peripheral), endocrine, and cardiac manifestations. Combinations of tinnitus, vertigo, deafness, visual impairment, electroencephalographic changes, weakness, muscle atrophy, paresthesias, hypothyroidism, and heart failure have been noted. Patients also frequently describe mood changes, depression, memory changes, inability to concentrate, weight loss, headaches, irritability, fatigue and muscle atrophy.
Because of these medical concerns, revision surgery to remove these implant components is usually recommended.
Richard E. Vollertsen, of The Alaska Personal Injury Law Group, has been selected as Alaska counsel for the New York law firm, Weitz & Luxenberg, to assist in defective product claims concerning hip implant devices manufactured by Stryker Orthopedics. Weitz & Luxenberg has been designated as one of the lead counsel of the litigation filed in New Jersey, and are nationally-recognized counsel with extensive expertise in such claims.
In July, 2012, Stryker recalled its Rejuvenate and ABG II modular-neck hip stems because of fretting and corrosion at the modular-neck junction. When this corrosion occurs, local tissue damage and systemic toxic metal exposure can occur. Adverse effects of the implant's failure include pain, fluid buildup in the joint, pseudotumor, localized tissue necrosis, and loss of blood supply to the bone causing bone cell death. These problems often require that the implant be removed and replaced in a revision surgery. Before revision is undertaken, physicians will complete blood testing to determine the level of toxic metal exposure from the cobalt and chromium in the implant, and will take MRI images to determine the health of the tissue and bone surrounding the implant.
Multiple claims for Alaska residents have now been asserted in this litigation.
We routinely advise clients here at the Alaska Personal Injury Law Group about their legal rights concerning their medical records. We do this to encourage them to become knowledgeable consumers of medical services. Essentially, the more informed the client is as a patient, the better services they can receive from their health care provider. So, it was with some surprise that I was informed by my own doctor that "by the letter of the law" he was not permitted to provide me with the reports he had received from a specialist (mind you, I had requested that the specialist send him the records in the first place). I agreed to request the records from the specialist instead, and made a mental note to review the applicable law, thinking that perhaps there was some new provision about which I was unaware.
The short answer is my doctor has been misinformed. The "letter of the law" is that a patient is entitled to receive a a complete copy of their medical records held by their physician. This has always been the law in Alaska, and remains so today. Most states have laws addressing this right. Further, federal heath care law has recently articulated a federal right of access to one's own medical records.
Alaska's statute, passed in 1978, sets out a broad right of access in A.S. 18.23.005: "a patient is entitled to inspect and copy any records developed or maintained by a health care provider or other person pertaining to the health care rendered to the patient." There are no articulated exceptions here, and the right of access would plainly reach to all records in the file, including lab reports, imaging studies, or the evaluations of other doctors since these are used by the physician in providing care.
Alaska's Medical Board is responsible for promulgating regulations that govern the practice of medicine in Alaska. In one regulation, 12 AAC 40.967, the Board expressly defines for physicians the behaviors that constitute "unprofessional conduct," including the failure:"to provide copies of complete patient records in the licensee's custody and control within 30 days after receipt of a written request from the patient." Most professions are also governed by an ethics code, and physicians are no exception. Alaska's Medical Board, in 12 AAC 40.955, has adopted the medical ethics code set out by the American Medical Association. The AMA, in Opinions 7.02 and 10.1, also sets out an ethical precept for physicians mandating that a copy of patient records be provided to the patient. Stating that the "patient is entitled to obtain copies or summaries of their medical records," the AMA sets this right out as one of the "fundamental elements" of the physician's relationship with their patient.
In the federal regulations implementing the Health Insurance Portability and Accountability Act ("HIPAA"), the patient's right of access is again broadly laid out, with some specific exceptions. In what is known as the Privacy Rule, 45 CFR 164.524, the regulation provides that: "an individual has a right of access to inspect and obtain a copy of" their records, and that right is only limited in certain situations that do not arise in routine health care, such as when the records contain information involving inmates, psychotherapy, litigation, or clinical research.
So, our advice to our clients remains the same. You are legally entitled to obtain a complete copy of your own medical records from your doctor, and you should get them if you want to be an effective participant in your own medical care.
A new MRI muscle imaging technique has been developed that allows detailed large scale 3-D images of the body's complex muscle structures. It also provides a means of detecting muscle damage precisely. Expanding further on the utility of diffusion tensor imaging, the technique captures the movement of water molecules within muscle fibers to detect changes in fiber directions. Moreover, the technique allows reliable 3-D imaging to be captured so that the images can be viewed from different directions. It is expected that the imaging will be useful in the treatment of chronic conditions, such as post-polio syndrome and diseases causing muscle atrophy, sports injury rehabilitation, and trauma.
Source: Eindhoven University of Technology, News Release, 10/30/2012.
The long-term consequences of traumatic brain injuries are always difficult to ascertain for clients as their rehabilitation progresses. One of our concerns has always been the future risk that a client suffering from TBI would later develop Alzheimer's or other dementias. The medical literature has not established this association to a certainty. Recent data published by the Journal of Neuroscience, however, has significantly moved forward our understanding about this significant medical risk.
Using mice and post-mortem samples from human brains, scientists from Tufts University School of Medicine have found that even a single event of moderate to severe TBI can disrupt the proteins that protect the brain from the enzymes that cause Alzheimer's disease. Serious TBI can lead to a dysfunction in the regulation of the enzyme BACE1, and elevation of that enzyme causes elevation of amyloid-beta, the key component of brain plaques associated with senility and Alzheimer's disease. It is hoped that these findings will guide future research, as well as assist in the development of future drug targets to aid in the prevention of Alzheimer's.
Moderate to severe TBI is often caused by the significant forces found in blunt force trauma, falls, and motor vehicle accidents. The CDC has reported that over 1.7 million people suffer such injury annually, although the majority suffer a milder form of TBI called a concussion. Even concussions and repeated but lesser head trauma is suspected to lead to Alzheimer's, however. Alzheimer's disease is reported to affect over 5 million Americans, and is the most common cause of dementia in those over the age of 65.
Source: Depletion of GGA1 and GGA3 Mediates Postinjury Elevation of BACE1, Journal of Neuroscience, July 2012.
Mr. O'Donnell recently successfully concluded a jury trial against a defendant who caused a head-on collision on the Seward Highway. The defendant was driving her vehicle while intoxicated and had allowed her vehicle to cross the centerline.
The plaintiff, a young woman, suffered extensive hip, leg and foot injuries. The jury awarded an amount in excess of the statutory limit for non-economic damages. Non-economic damages include damages for pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, and inconvenience. The total judgment, including stipulated medical expenses, totaled $4.2 million.
The Alaska Personal Injury Law Group, consisting of Neil O'Donnell, Mike Moody and Rick Vollertsen, has successfully resolved, either by way of jury verdict or settlement, numerous serious automobile claims over the past three decades. Through this track record they have developed extensive experience working with the medical, engineering and economic experts needed to successfully present such claims for their full value. Such experts include accident reconstruction engineers, biomechanic engineers, rehabilitation experts and economists.
The Alaska Personal Injury Law Group recently successfully resolved the claims of a client who was injured in a 2010 crash of a Dehavilland Beaver float plane at a remote fishing lodge is Southwest Alaska.
The crash occurred after the pilot failed to back-taxi an adequate distance on a lake before turning and attempting a takeoff run. Despite reaching his predetermined abort point without having achieved takeoff, the pilot continued toward the shoreline under full power and simply hoped for the best. The best did not occur and the plane slammed into the lake embankment under full power. Alaska Personal Injury Group attorney Neil O'Donnell successfully resolved the claim against the lodge and successfully negotiated resolution of the various lien claims by the client's medical providers and health care insurers. This matter is one of the many aviation matters the Alaska Personal Injury law group has handed over the years. The practice group has extensive experience with aviation cases involving pilot error, inadequate pilot training, mechanical problems, and design defects.
Although neuroscience has progressed in establishing the role various brain structures play in the executive functioning of the brain, there has not been solid evidence of the brain networks that support high-level cognition and general intelligence. In a new study released in the journal Brain, a fascinating picture is emerging that could support new understanding of the brain's critical functions. Scientists gathered 182 volunteers with very localized brain injuries from penetrating head wounds, and subjected them to CT scans and an extensive battery of cognitive tests. What they found was that general intelligence was derived from a particularly circumscribed neural system. Several brain regions working in connection were found to be most important for general intelligence. These structures were primarily found behind the forehead (left prefrontal cortex), behind the ear (left temporal cortex), and the top rear of the head (left parietal cortex). The data also disclosed that brain regions for planning, self-control and other key elements of executive functioning overlapped those structures found important for general intelligence. This new evidence suggests that intelligence does't derive from one brain region or the brain as a whole, but specific brain areas working together in a coordinated way.
Source:A. K. Barbey, R. Colom, J. Solomon, F. Krueger, C. Forbes, J. Grafman. An integrative architecture for general intelligence and executive function revealed by lesion mapping. Brain, 2012; DOI: 10.1093/brain/aws021
Most people know that it is a good idea to hire an attorney when entering contracts, creating a will or trust, or engaging in litigation. What you may not know is that you can, and often should, hire an attorney for arbitrations. With increasing frequency contracts contain arbitration provisions that require you to resolve any dispute through arbitration rather than through litigation. For example, when you retain the services of a broker or sign a contract with your financial advisor, that contract likely contains a FINRA arbitration clause.
The Financial Industry Regulatory Authority (FINRA) is an independent regulator of security advisors and securities firms doing business in the United States. When an investor seeks securities sales advice or purchases a security, such as stock, equity, or corporate bonds, the investor and his advisor and/or the securities firm enter into a contract. Typically the contract will include a provision stipulating that any dispute arising under the contract will be subject to the rules of FINRA.
When a conflict arises under the contract, such as if an advisor recommends an unsuitable investment, FINRA has three dispute resolution options: (1) the investor can file a complaint with FINRA against the advisor or the broker company, this is not litigation but allows FINRA to look into your complaint; (2) the investor can proceed to mediation; or (3) the investor can decide to arbitrate the conflict.
When an investor decides to arbitrate the dispute, FINRA arbitration rules dictate the rules of the proceedings. For example, an investor must first file a Statement of Claim with FINRA. Once the investor has paid the filing fees, FINRA will serve the Statement of Claim on the investor’s advisor and/or the securities firm. For claims less than $25,000, FINRA will appoint one arbitrator and the claim will be subject to FINRA’s simplified arbitration rules. If the claim is between $25,000 and $100,000, the parties each will remove arbitrators from a FINRA provided list of potential arbitrators and FINRA will appoint one arbitrator. For claims over $100,000, each party strikes arbitrators from the FINRA provided list and FINRA appoints three arbitrators.
Similar to a court proceeding, there is a discovery period, where each side shares documents and the parties attend prehearing conferences. Parties to a FINRA arbitration can represent themselves in the arbitration and prehearing conferences. However, firms and advisors are typically represented by counsel. FINRA recommends that investors hire counsel given the complex nature of securities law.
On average, a FINRA arbitration can take a little over a year from start to finish. Once decided, the ability to appeal an arbitration decision is very limited for either party. Given the finality of arbitration awards, and the complex nature of securities law, it is advisable for an investor to hire an experienced securities law attorney.
Atkinson, Conway & Gagnon attorneys Christopher Slottee and Sarah Marsey have successfully represented investors in FINRA arbitrations. Most recently in 2011 they successfully represented an investor in a six-day arbitration hearing in Anchorage, after the investor’s advisor gave misleading information about a security sale.