Omaha Personal Injury Lawyer - Head Injury

ERISA Reimbursement Case of Interest

John Inserra — Wed, 01 Aug 2007 06:35:17 GMT

An ERISA case, Mills v. London Grove Township, decided by a Federal Judge in Pennsylvania did not allow the plan administrator to recover against a special needs trust set up for a dependant of the plan's primary beneficiary. For anyone who deals with ERISA subrogation claims, the judge put his reasoning into reality when he states:

In the final analysis, the real dispute generated by ACS's opposition is between ACS and the taxpayers who, in the future, will be called upon to bear the minor's medical expenses. ACS was paid premiums for its coverage; the taxpayers have not been.

Originally posted at InjuryBoard by John Inserra

Healthcare Quality versus Cost

John Inserra — Thu, 14 Jun 2007 15:56:09 GMT

As reported by the New York Times:

In a Pennsylvania government survey of the state's 60 hospitals that perform heart bypass surgery, the best-paid hospital received nearly $100,000, on average, for the operation while the least-paid got less than $20,000. At both, patients had comparable lengths of stay and death rates

Originally posted at InjuryBoard by John Inserra

Healthcare - A Start

John Inserra — Tue, 29 May 2007 15:26:02 GMT

Finally a start to the curbing of health care costs. First, the consumer must know the cost of the service, so he or she can make a judgment about that service. Will this curtail costs? Who knows! I believe it is a least a step in the right direction.

California's largest private physician practice has become one of the first doctor groups in the nation, and almost certainly the largest, to make prices for its medical procedures widely available to consumers.

Originally posted at InjuryBoard by John Inserra

Healthcare

John Inserra — Tue, 17 Apr 2007 11:38:44 GMT

One doctor's opinion!

America's health insurance system is sick. The symptoms: high costs, lack of access, declining choice, increasing medical homelessness.[1] The etiology: our dependence on private health insurance. In no other industrialized nation does the majority of people rely on private health insurance to get healthcare.
Private health insurance is like a sponge: It sucks up dollars but is full of holes when it comes to coverage, limiting patients' choice of doctor, hospital, and treatment. High deductibles make patients pay for preventive and primary care; so many wait until they have advanced disease. The insured as well as the uninsured are shortchanged by our system.[2]
Private insurance companies also create major problems for doctors. We are ethically obligated to our patients while insurance companies are fundamentally obligated to their shareholders: They cover the healthy and shun the sick. Each company has its own rules and drug formulary, forcing doctors to hire staff just to process bills, challenge claims denials, and obtain prior approvals.[3]
Doctors are seeking new solutions, as shown by the recent Medical Society of the State of New York membership survey: Fifty-six percent of the more than 1700 respondents favored single-payer, Medicare-for-all, national health insurance.[4]
Watch TV or read the newspaper. Everyone -- President Bush, John Edwards, Arnold Schwarzenegger -- claims a "solution," yet their solutions are bound to fail. Why? Because neither individuals, businesses, nor government can afford the hundreds of billions of additional dollars that would be paid to insurance companies. They and the billing systems they require already take $350 billion from patient care and shift it into marketing, collections, paperwork, underwriting, and inflated CEO salaries.[5]
We would take that $350 billion and put it into covering all the uninsured and eliminate deductibles and coinsurances for the underinsured. Overall, there would be no increased costs to the healthcare system.
As Chair of The Metro New York Physicians for a National Health Program, our prescription for this sick US health insurance system is some major surgery. Cut out the private insurance companies and bring in expanded, improved Medicare-for-all, automatically enrolling all US residents. Patients and doctors alike will be the winners.
That's my opinion. I'm Dr. Oliver Fein, Professor of Clinical Medicine and Public Health at the Weill Medical College of Cornell University in New York City.

Originally posted at InjuryBoard by John Inserra

Intervertebral Disk Replacement

John Inserra — Fri, 30 Mar 2007 10:39:16 GMT

A small study shows promise for intervertebral disk replacement rather than spinal fusion or artificial disk replacements.

Preliminary experience in 5 patients with degenerative spine disease suggests that transplantation of fresh-frozen intervertebral disks preserved motion and stability of the spinal unit, despite some signs of mild degeneration in the disks over follow-up. Neurologic symptoms in all patients were also improved compared with before-surgery levels.

Originally posted at InjuryBoard by John Inserra

LawyersUSA Top Ten Verdicts fall for 2006

John Inserra — Thu, 18 Jan 2007 14:37:48 GMT

It is always interesting to read about the top ten plaintiff's verdicts in any given year. An article in LawyersUSA indicates a significant drop in the dollar amount of these verdicts.

Originally posted at InjuryBoard by John Inserra

Microdiscectomy Study

John Inserra — Tue, 09 Jan 2007 15:53:27 GMT

A study reported at Medscape: Not a large study but it seems to fall in line with recent trends for treatment of herniated discs.

Study Design: Prospective randomized controlled trial.
Objective: To assess effectiveness of microdiscectomy in lumbar disc herniation patients with 6 to 12 weeks of symptoms but no absolute indication for surgery.
Summary of Background Data: There is limited evidence in favor of discectomy for prolonged symptoms of lumbar disc herniation. However, only one randomized trial has directly compared discectomy with conservative treatment.
Methods: Fifty-six patients (age range, 20-50 years) with a lumbar disc herniation, clinical findings of nerve root compression, and radicular pain lasting 6 to 12 weeks were randomized to microdiscectomy or conservative management. Fifty patients (89%) were available at the 2-year follow-up. Leg pain intensity was the primary outcome measure.

Results: There were no clinically significant differences between the groups in leg or back pain intensity, subjective disability, or health-related quality of life over the 2-year follow-up, although discectomy seemed to be associated with a more rapid initial recovery. In a subgroup analysis, discectomy was superior to conservative treatment when the herniation was at L4-L5.
Conclusions: Lumbar microdiscectomy offered only modest short-term benefits in patients with sciatica due to disc extrusion or sequester. Spinal level of the herniation may be an important factor modifying effectiveness of surgery, but this hypothesis needs verification.

Originally posted at InjuryBoard by John Inserra

You Take Them as You Find Them

John Inserra — Fri, 18 Aug 2006 09:50:35 GMT

The case of Castillo v Young handed down today by the Nebraska Supreme Court answers the question regarding the propriety of instructing a jury regarding a prexisting condition. The court decided that it is proper for a trial court to instruct a jury that you take the plaintiff as you find them.

The requested instruction was:

The instruction requested by Castillo stated:
There is evidence that the Plaintiff had a broken jaw 20 years before the accident on December 20, 2000. The Defendant(s) is (are) liable only for any damages that you find [were] proximately caused by the accident on December 20, 2000.
If you cannot separate damages caused by the pre [sic] existing broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) is (are) liable for all of those damages.
The defendant's [sic] may be liable for bodily harm to Nancy Castillo even though the injury is greater than usual due to the physical condition which predisposed Nancy Castillo to the injury. In short, the defendant's [sic] take the plaintiff as they find her.

The instruction the court gave was:

Instruction No. 13, as given by the court, stated:
There is evidence that the Plaintiff had broken her jaw in 1983 and experienced a dis[k] displacement in her jaw prior to the December 20, 2000, accident.
The Defendant(s) is liable only for any damages that you find to be proximately caused by the Defendants' negligence relating to the December 20, 2000, accident.
If you cannot separate damages caused by the pre [sic] existing broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) are liable for all of those damages.

The Supreme Court held:

This court has often noted that to establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Id. Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.
In Ketteler v. Daniel, 251 Neb. 287, 298, 556 N.W.2d 623, 630 (1996), when this court concluded that an instruction requested by the plaintiff should have been given, the court stated:
First, the proffered instruction correctly stated the law. Second, the instruction was warranted by the evidence offered by [the defendant's expert witness], who testified that [the plaintiff] suffered from fibromyalgia prior to the accident, and by [the plaintiff's family physician], who testified by deposition that [the plaintiff] had suffered from back and neck conditions prior to the accident which were aggravated by the accident. Finally, refusal by the trial court to submit the entire proposed instruction was prejudicial to [the plaintiff].
For the same reasons, we conclude Castillo was prejudiced by the trial court's failure to give the proffered instruction in this case. We find that a new trial on the issue of damages is warranted.

Originally posted at InjuryBoard by John Inserra

FELA Verdict in Colorado Upheld

John Inserra — Fri, 09 Jun 2006 09:03:39 GMT

In a FELA case, the Colorado Court of Appeals on Thursday upheld a jury's decision to award a Union Pacific conductor, out of North Platte Nebraska, $6 million for injuries he suffered in a fall down the stairs of a locomotive. The claimant suffered a traumatic brain injury as a result of the fall in August 1998. A district court jury ruled that the Omaha, Neb.-based railroad was at fault under the Federal Employers Liability Act and that the railroad had destroyed locomotive inspection records that were likely favorable to plaintiff's case. While it ruled in favor of the plaintiff in March on the railroad's appeal based on jury instructions, the Supreme Court sent the case back to the appeals court for work on other disputed issues. Thursday's ruling by a three-judge panel rejected the railroad's arguments.

Originally posted at InjuryBoard by John Inserra

Diagnosis of Fibromyalgia and Daubert Ruling in Nebraska

John Inserra — Fri, 02 Jun 2006 15:49:09 GMT

The Nebraska Supreme Court ruled today that a trial court did abuse its discretion in striking the testimony of a physician regarding the causal relationship between a diagnosis of fibromyalgia and it traumatic onset. The case is Epp v. Lauby, 271 Neb. 640. This case reiterates Nebraska's interpretation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

Under our recent Daubert/Schafersman jurisprudence, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). See, also, Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005). Most recently, we described a trial court's evaluation of the admissibility of expert testimony as essentially a four-step process. State v. Mason, ante p. 16, 709 N.W.2d 638 (2006). First, the court must determine whether the witness is qualified to testify as an expert. If the expert is and it is necessary for the court to conduct a Daubert analysis, the court must next determine whether the reasoning or methodology underlying the expert testimony is scientifically valid and reliable. Once the reasoning or methodology has been found to be reliable, the court must next determine whether the methodology was properly applied to the facts in issue. Finally, the court determines whether the evidence and opinions related thereto are more probative than prejudicial, as required under Neb. Evid. R. 403, Neb. Rev. Stat. Â§ 27-403 (Reissue 1995). State v. Mason, supra.

The Court's conclusion is:

Although the issue is disputed, there is support in the medical literature for the theory that physical trauma can cause fibromyalgia. That support, while controverted, is the result of peer-reviewed research conducted pursuant to appropriate methods of scientific inquiry. While there is not a sufficient scientific consensus to say that the theory is generally accepted, nor has a rate of error been established, the theory that trauma can cause fibromyalgia has been the subject of empirical research, the results of which have been subjected to peer review and publication. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. We cannot conclude that Handke and Bennett's reliance on this research, instead of literature to the contrary, was methodologically unreliable. If proffered scientific evidence rests on sound scientific reasoning or methodology and properly can be applied to the facts in issue, it meets the Daubert requirements for admissibility, even if the conclusion is novel or controversial. See State v. Dahood, supra. Despite the existence of "spirited dissent," see State v. Sampson, 167 Or. App. at 503, 6 P.3d at 553, the lack of a scientific consensus on the link between trauma and fibromyalgia was not sufficient to render reliance upon that literature methodologically unreliable. We, therefore, conclude that the evidence was sufficient to support the theory of a causal relationship between physical trauma and fibromyalgia and that the trial court abused its discretion in concluding otherwise.

Originally posted at InjuryBoard by John Inserra