So you think you’ve been harmed by a drug or a medical device, or some form of financial fraud but aren’t certain. You’re considering a lawsuit but aren’t really sure what to do. You’d like to speak with an attorney but aren’t sure what information to bring with you or how to prepare. This week, Pleading Ignorance looks at the steps you can take to help prepare for a lawyer consultation, so your lawyer can determine if you have a legitimate claim.
Once you think there may be a problem, make detailed notes about the incident, injury or harm in question. This includes the date of the harm, any appointments linked to your harm, key events in your dispute—including when any phone conversations and email correspondence took place—and any other background facts you might have. Be sure to include information about anyone you have seen in relation to your complaint. (In the case of drug side effects, that would include doctors, surgeons, specialists and so on. In the case of financial fraud, that would include financial advisors, stockbrokers and companies you dealt with.)
For example: if your concern is about a drug’s harmful side effect, include notes about when you first started the drug, when you noticed the side effects, any information provided by the doctor about your side effects, whether you have a history of problems with similar medications and why you were put on the medication. Also keep notes about how the side effects have affected you. Have you missed days from work? Has it impaired your ability to work at all? Have you required expensive medication or extensive rehabilitation?
When it comes to providing the attorney with information, the more the better. Don’t exclude information or details that you think might be “unimportant”—the attorney will decide which details will be critical to your claim.
2) Keep Paperwork…Create a File of Documents, Statements, Emails, Bills, Medical Records
This includes any correspondence regarding your situation. In the case of a medical dispute, this includes correspondence between you and your doctor (if there is any), test results, drug warning labels, receipts for medication, insurance claims, any information given about the drug or medical device in question. In the case of a financial dispute, this includes contracts, monthly or quarterly statements, any correspondence between you and your financial broker or advisor, any marketing materials you were given about the investment and so on.
Some paperwork might not seem important at the time but may become important later. For example, if you clipped an ad for a drug that claimed the drug was safe and you kept that clipping, bring it in to show the lawyer.
3) Be Honest with your Attorney…”Hiding” Details won’t Help your Case
Your attorney cannot help you if you don’t provide all the important facts. If you were taking several medications at once, the attorney needs to know this, even if your claim is that only one of the medications caused you harm. If you already suffered back pain before your car accident, tell your attorney. Don’t keep secrets from your lawyer, or it’ll be much more difficult for her to make your case.
4) Don’t Procrastinate…the Sooner the Better to Contact an Attorney
Many lawyers have turned down completely legitimate cases because the statute of limitations has run out. Don’t assume that you have a long time to file a claim. In some states, the statute of limitations is as short as a year, and depending on your circumstances (such as in the case of a car accident), paperwork may have to be filed within months of the incident. Even if you think you have time, remember it takes an attorney time to gather facts about your case before filing a claim, meaning that seeing an attorney one day before the statute of limitations runs out might be too late.
5) Prepare Questions for the Attorney…You’re Interviewing him as well
Before you hire an attorney, you should ask some questions yourself. These include:
6) Have Realistic Expectations
Lawsuits can take years to resolve. Don’t expect to go to an attorney’s office and have an immediate resolution to your case. Lawsuits are long and often complex processes, so expect to be in it for the long haul.
Remember that each lawsuit is different, even if they seem similar on the outside. An award of $10 million in one case does not mean you’ll get $10 million in yours, even if it appears that you have the same claim. There are many factors that go into an award and no two claims are identical.
Remember, too, that although the media likes to play up “frivolous” lawsuits—like the mother who sued Chuck E. Cheese for promoting childhood gambling—making it seem like anyone can file and win a lawsuit for any reason whatsoever, the reality is that some lawsuits are simply not able to proceed even though there has been an apparent injury. This might happen, for example, with a drug lawsuit in which a plaintiff claims harm from the drug, but no studies exist to prove outright that the drug, indeed, was the cause of the harmful side effect. Regardless, in the example of a bad drug complaint, your attorney—and only an attorney—would be able to assess the details of your complaint to see whether you might have a negligence, malpractice or defective product claim. So it’s always wise to consult with an attorney first—even though you may not wind up having a case.
By keeping detailed notes, holding on to paperwork and having realistic expectations, you make life easier for you and your attorney. Having at least some of that information from the get-go can make it easier for an attorney to determine if you have a legal claim.
In the realm of people being ripped off, there are a few stories that are often the most heart breaking. Seniors losing their life savings to Ponzi schemes, seniors suffering financial elder abuse at the hands of their own families and people being denied necessary medical treatment because of bad faith insurance practices.
But there’s another story that’s been emerging that is also heart wrenching—stories of how insurance companies have denied and/or delayed legitimate accidental death claims by alleging the death was not an accident at all. These situations leave the surviving family members to deal with mountains of paperwork and facing the death of their loved ones over and over again while ERISA laws reportedly help insurance companies get away it.
The situation was first reported by David Evans at Bloomberg (02/28/11). A man died in a car accident after a long battle with cancer. A medical examiner and a sheriff determined that the car crash was an accident—meaning the victim’s death was accidental. But the insurance company refused to pay, saying that the victim committed suicide.
In other words, the insurance company knew more than the medical examiner and the sheriff. Now, consider that for a moment. By claiming the man committed suicide, the insurance company allegedly aimed to get out of paying out the accidental death policy. But there’s more to it than that. Because the insurance company claimed to know the mind of the victim better than his own family and better than the investigators who looked into the accident.
The good news is that the victim’s wife sued and received the full life insurance policy. The bad news is that the insurer still denied wrongdoing—apparently, it’s not wrong to allege someone committed suicide—and didn’t pay any interest or penalties for holding the money.
Why? Because ERISA (Employee Retirement Income Security Act) protects insurers. It says they can keep the survivors’ money while a claim is in court and invest that money, too, keeping the profits. Furthermore, under ERISA, insurance companies don’t have to pay compensatory or punitive damages. In other words, they can hold the money for an extra year or two, make a profit off investing that money and still only have to give the survivor the amount of the policy at the end. They profit while the survivor loses.
So, once again, insurers are only too happy to receive premiums and benefit if they delay paying out claims.
And why is ERISA involved in this at all? Because many companies provide life insurance, and company sponsored benefits—such as life insurance—are covered under ERISA. Making matters even worse, because ERISA is a federal law, state insurance departments don’t have the authority to step in on survivors’ behalf. It’s up to survivors to hire lawyers to help them fight any wrongfully denied accidental death claims.
The end result is that if you have a company-sponsored life insurance policy claim that you feel has been wrongfully denied, don’t rely on the insurance company to tell you what “normal procedure” is. Your best bet is probably to contact an attorney and find out if you can fight the denial. After all, insurance companies apparently have little to lose by denying legitimate claims.
If not, you’re not alone. In fact, even the courts have reached contradictory rulings in the pharmaceutical representative overtime lawsuits they’ve seen. While the pharma reps won the Novartis lawsuit, they lost the Johnson & Johnson and GlaxoSmithKline lawsuits. Those losses, however, don’t mean that pharmaceutical sales reps should just give up. In each case, the judges relied on different legal issues and exemptions, which is how such different results were achieved. Pleading Ignorance takes a look at what’s been going on…
Under the Fair Labor Standards Act, certain employees are considered exempt from overtime pay. Those exemptions include outside sales employees and people who are considered “administrative”. Outside sales employees are considered exempt because they are paid on commission and therefore have an unlimited earning potential. Furthermore, many outside sales people work independently of an office and therefore have a say in what hours they work and how they go about their job. To be considered exempt from overtime pay, however, outside sales people must spend at least 50 percent of the time in their job involved in sales.
Administrative people are those who exercise independent authority, judgement or discretion in their job. They have a great deal of discretion in their job activities and how they fulfill their employment requirements.
Lawsuits have been filed against various pharmaceutical companies alleging that pharmaceutical sales reps do not fit either the outside sales exemption or the administrative exemption.
In the Novartis lawsuit, the court found that the pharmaceutical reps were misclassified as exempt from overtime pay—meaning they should receive pay for overtime hours worked. In reaching the decision, the court found that Novartis sales representatives were not directly involved in the sales transaction. Instead, the reps informed physicians of a product’s benefits and encouraged physicians to prescribe Novartis products. At no point during the visit did the sales rep actually engage in a sales transaction.
Furthermore, the court found that the Novartis reps didn’t fall under the administrative exemption because Novartis controlled the sales pitches and reps were not allowed to deviate from that pitch. Additionally, the reps did not have the authority to in any way direct or interpret Novartis policies or procedures. Because the courts found the Novartis reps were not exempt under the outside sales or administrative rules, the reps are therefore, according to the courts, eligible for overtime pay.
A lawsuit against Johnson & Johnson, however, resulted in a different decision. In that case, the pharmaceutical sales representative was found to be exempt from overtime pay under the administrative employee guidelines. In that case, the court found that the plaintiff was able to develop her own itinerary, could visit some doctors more frequently than others and was expected to develop a plan to obtain more sales. The court found that the plaintiff worked without direct oversight most of the time and therefore had discretion and independent judgment required for the administrative exemption.
In GlaxoSmithKline’s lawsuit over pharmaceutical representative overtime pay, the courts backed GlaxoSmithKline’s decision not to pay the reps overtime. In this case, unlike Johnson & Johnson, the court determined that GSK sales reps fall under the guidelines of outside sales representatives because they are motivated by commissions and they have freedom to work outside the office.
So it currently appears that whether or not a pharmaceutical rep is eligible for overtime pay is somewhat determined by which court hears the lawsuit and by which company you work for and how much authority you have in your job.
The court’s decision in GSK actually contradicted a brief filed by the US Department of Labor that supported pharmaceutical reps being paid overtime. So, even though the Department of Labor supports overtime for pharmaceutical reps, there’s no guarantee that the courts will agree with it. More lawsuits are still to come and the Supreme Court might wind up determining the whole thing in the end. As of now, though, there’s no reason for pharmaceutical representatives to give up the fight.
If you’ve ever watched any of the seemingly endless supply of medical dramas on television (Grey’s Anatomy, House, Private Practice…) you’ve probably heard the phrase “medical malpractice”—or some variation of it—tossed about threateningly. It’s also a popular plot twist in soap operas—General Hospital fans will recall Dr. Patrick Drake (and his half-brother, Matt) being sued for malpractice.
Great as it may be for adding intrigue to a plotline, medical malpractice—or at least the true meaning of it—tends to get lost and twisted in the drama. So this week, Pleading Ignorance shines a light on what medical malpractice, otherwise affectionately known as “med mal”, is…
Let’s start with the more technical version: medical malpractice is either an act or failure to act on the part of a health care provider, where that act or omission deviates from reasonable standards of care in the field and causes harm to the patient. Got that? Basically, medical malpractice has two parts. First, the negligence and second, the harm to the patient.
The negligence part of medical malpractice is the first part of the explanation above. Negligence is any act or failure to act by a medical professional where the care provided does not meet generally accepted standards of practice. So, what does that mean? It means that person providing the health care—a doctor, nurse, dentist or any health care professional—does not provide care that meets accepted standards.
That’s important, because there’s a difference between a medical professional being negligent and a medical professional who has done all he can to help a patient but still can’t find the answers.
Say a patient, we’ll call her Sarah, goes to the doctor with a variety of symptoms. Dr. A runs test after test, has follow-up visits, consults with other doctors and still can’t determine the cause of Sarah’s problems. Finally, after a long process, Dr. A determines that Sarah has cancer and the cancer has progressed too far to be operable. Dr. A is not necessarily guilty of medical malpractice because he has met an accepted standard of care by sending Sarah for tests, scheduling follow-up appointments and so on.
Now, say Sarah goes to Dr. B. Dr. B listens to Sarah for a while but ultimately decides that her pain is in her head. So he sends her home without requesting any tests and does not offer to follow up with her. Sarah repeatedly sees Dr. B with the same complaints, but is always dismissed by the doctor. Eventually, a different doctor diagnoses Sarah with cancer, but by then the cancer is not treatable. Dr. B may be guilty of medical malpractice for not meeting a reasonable standard of care in Sarah’s situation.
Whether or not a doctor is negligent depends on whether a reasonably competent doctor who has Read the rest of this entry »
If you’ve followed news about Fosamax lately, you’ve probably heard the term “bellwether trial” thrown around. The judge in that case has ordered two more bellwether trials in addition to the five that have either already been decided or will be decided later this year. So…
Basically, a bellwether trial is a trial to indicate future trends in a specific litigation. They are used when a large group of plaintiffs have filed suit based on the same theory or claim and the only feasible way to handle the caseload is through a bellwether trial.
Think of it this way—NASA has flight simulators. Marketing departments have focus groups and in-home trials. Pharmaceutical companies have clinical trials. And your local car dealership hands you the keys for a test drive. Law schools may have mock trials, but the only way to really get a sense of how a major lawsuit is going to play out is the bellwether trial.
In a bellwether trial, a small group of plaintiffs is chosen to represent the group. Those plaintiffs are chosen because their issues are common amongst all the plaintiffs. Most large-scale lawsuits, such as asbestos or Fosamax, will run three to five bellwether trials, although the judge can order more or fewer.
Also, because a major lawsuit can take a long time to wind its way through the legal process, the bellwether trials become a key milestone for both plaintiffs and defendants–and are, therefore, eagerly awaited by all involved. For example, talk of Yaz lawsuits (or Yasmin lawsuits for that matter) has been going on for a while. But the first Yaz bellwether trial is scheduled to take place later this year, on September 12, 2011 for pulmonary embolism side effects; that will be followed by one set for January 9, 2012 and finally a Yaz thromboembolic case on April 2, 2011. Given such a drawn out timeline, it’s no wonder everyone looks to Read the rest of this entry »