Uninsured Motorist (UM) Claims
Posted by: euser
December 30, 2009
Topic: PERSONAL INJURY LAW
What do you do if you are injured in a car crash, and the other party has no insurance? You can either try to collect from them personally, or you can make an uninsured motorist (UM) claim against your own auto insurance policy. Since I've heard that some 40% of Arizona motorists are uninsured, this coverage is essential. It's relatively cheap and critical if you are injured as a result of the negligence of an uninsured motorist. Since you didn't cause the collision, your rates should not be affected by making such a claim. Your UM coverage will cover all damages caused by the uninsured motorist (medical bills, lost wages, and pain and suffering), but will usually not cover punitive damages, which might have applied if the uninsured motorist was guilty of driving under the influence.
While you are making the claim against your own insurance, you should not assume your own company will give you the benefit of any doubt in evaluating your claim. Typically, the UM carrier is as difficult to deal with in adjusting claims as if you were dealing with the carrier of the responsible party. If you are unable to settle your claim with your UM carrier, you have to look at the policy to determine how to resolve the claim. Historically, UM carriers provided for binding arbitration within the policy to resolve claims. Either one or three arbitrators (usually practicing personal injury lawyers) acted as judge and jury to resolve the claim. However, carriers are increasingly adding direct suit endorsements to their UM policies, which require their policy holders to sue them in Court to resolve the claim. What follows is a real case which I recently resolved, which demonstrates the process of a UM claim.
My client, Fred (not his real name) was seriously injured in a motorcycle collision. He had five surgeries, and his medical bills were over $300,000.00. He had complications with one of the surgeries when a surgical plate broke. He originally came to see me because he was considering a product liability claim against the manufacturer of the plate. However, when I told him we would have to sue not only the manufacturer of the plate, but his surgeon, too, he refused. He really liked his surgeon, and did not want to sue him. (Based on my experience, the manufacturer would claim that the surgeon did not install the plate correctly, which caused it to fracture. In order to counter that defense, the surgeon would need to be a party to the case). Further, since Fred technically rear ended a car in the collision; he did not think he had a case against the driver of the car.
Since Fred was so seriously injured, I wanted to help him. In reviewing his case, I learned that the driver of the car had no insurance, and Fred had $100,000.00 in UM coverage. It wasn't enough to fully compensate him, but it was significant enough to help him financially. I also learned from interviewing the witnesses that Fred was riding behind the car at a safe distance and speed, but the car stopped unexpectedly during a right hand turn, and while attempting the avoid the collision, Fred clipped the left rear of the vehicle. With this evidence, I felt that while the driver of the car wasn't 100% at fault, she did have some fault.
In Arizona, cases are evaluated on the basis of comparative negligence. What this means is that each party responsible for a collision only pays his or her own share. For example, I evaluated Fred's claim as being worth $1,000,000.00. If the driver of the car was 10% at fault, and Fred was 90% at fault, he would still be entitled to 10% of his damages, or in this case, $100,000.00, which was the limit of his UM coverage.
I presented a demand to Fred's UM carrier, demanding the $100,000.00 limit. They refused to make an offer, claiming that Fred was 100% at fault for this collision. Pursuant to the terms of the UM policy, I filed suit against the UM carrier. After filing suit, I reached an agreement with the UM carrier to have the case be decided by binding arbitration, and we agreed on a single arbitrator, and set a hearing date. The arbitrator did not know the amount of insurance coverage involved. At the hearing, each side presented witnesses and evidence.
After the hearing, the arbitrator made his decision: he found Fred's total damages to be $950,000.00, and found Fred to be 60% at fault for the collision, and the uninsured motorist to be 40% at fault, entitling Fred to 40% of the $950,000.00, or $380,000.00. If Fred had purchased that much UM coverage, he would have received that amount. However, he only purchased $100,000.00 in coverage, and the carrier paid that amount. Because the carrier initially refused to pay anything, and for other elements of the carrier's conduct in this case, Fred has the option of filing a bad faith lawsuit against his insurance company for the damages they caused him as result of their handling of this case, but that is another topic for another post.
When your considering buying auto insurance, or reviewing your policy upon renewal, make sure you have enough UM coverage.
Matrixx Says FDA Won't Budge on Recalled Zicam Products
Posted by: euser
October 28, 2009
Topic: PRODUCT LIABILITY
It looks like federal health regulators aren't backing down when it comes to recalled Zicam Nasal Cold Remedies. According to a Reuters report, Matrixx Initiatives Inc., the maker of Zicam products, said the Food & Drug Administration (FDA) is "unwilling to reverse its position regarding the warning letter" it issued over Zicam nasal remedies earlier this year.
In June, the FDA said it had received 130 reports of anosmia-loss of sense of smell-in people who had used the product. Following the FDA alert, Matrixx Initiatives recalled two of the products: Zicam Cold Remedy Nasal Gel and Zicam Cold Remedy Swabs. The company had already withdrawn Zicam Cold Remedy Swabs, Kids Size, the third product named by the FDA.
At the same time, the FDA issued a warning letter to Matrixx. In the letter, the FDA said Matrixx had failed to inform it of 800 anosmia reports linked to the recalled cold remedies. Matrixx has admitted that it did not pass along those reports to the FDA, but has maintained that its legal counsel advised it was not required to forward those reports to the agency. In the Warning Letter, the FDA warned the firm that the products cannot be marketed without agency approval and also stated that the three Zicam nasal remedies did not include adequate warnings about the risk of loss of sense of smell.
According to Reuters, Matrixx said in a regulatory filing with the Securities and Exchange Commission (SEC) that the FDA will not reverse its stance that the recalled Zicam products could not be marketed without agency approval. The filing said the company is currently evaluating its options. Matrixx also said it was reviewing the FDA's contention that it should have filed adverse event reports on several individual Zicam loss of smell cases, and that it would be responding soon.
Since the Zicam nasal cold remedy recall, Matrixx has been hit with several class action lawsuits filed on behalf of people who claim the products caused them to suffer anosmia. Earlier this month, the U.S. Judicial Panel on Multidistrict Litigation consolidated the Zicam litigation for pretrial proceedings in the District of Arizona for coordinated handling.
According to Reuters, the recent SEC filing also disclosed that two shareholder derivative lawsuits were filed in September against current and former Matrixx officers related to the recall.
U.S. Drug Watchdog Issues Zicam Warning
Posted by: euser
October 21, 2009
Topic: PRODUCT LIABILITY
The US Drug Watchdog Calls Zicam Nasal Gel or Zicam Swabs a Looming Disaster that May Cause Loss of Taste or Smell
The US Drug Watchdog is doing everything possible to get the word out to all US citizens about recalled Zicam products. So what exactly did the FDA say about zicam Nasal Gel & zicam Cold Remedy Swabs in its recall? The U.S. Food and Drug Administration (FDA) has warned Matrixx Initiatives to stop selling three over-the-counter zicam products, marketed as cold remedies, after more than 130 people reported developing long-lasting or permanent loss of smell (called anosmia). The warning applies to: zicam Cold Remedy Nasal Gel, zicam Cold Remedy Nasal Swabs, and zicam Cold Remedy Swabs, Kids Size (a discontinued product).If a consumer has lost their sense of taste or smell after using a recalled Zicam product, please call the US Drug Watchdog at 866-714-6466, or contact the group via its web site at http://usdrugwatchdog.com/
(PRWEB) October 21, 2009 -- The US Drug Watchdog is urging all US Consumers to check to see if they have recalled Zicam products in their medicine cabinets. If they do, and there has been no loss of taste, or smell, throw the product away. If on the other hand a US consumer has lost their sense of taste or smell within the last three years, after using the recalled zicam products, please call the US Drug Watchdog immediately at 866-714-6466, or contact the group via its web site at http://usdrugwatchdog.com/
 our greatest fear is that with the cold & flu season already here, completely innocent consumers will use one of the recalled Zicam products and lose their sense of taste, or smell forever.  |
| Please share this press release with everyone you know. Make sure these recalled Zicam products are not in your medicine cabinets at home. |
| we know of a young woman, who had a great job in the food & wine industry. She has lost her sense of taste & smell. She is now unemployed. |
According to the US Drug Watchdog, "our worst case scenario is a consumer gets a cold, or the flu, goes to their medicine cabinet & uses a recalled Zicam product. The consumer uses a recalled product & then they lose their sense of taste or smell, because the Zicam recall notification was only on the news for one day (June 16th 2009)." If a consumer lost their sense of taste or smell after using a recalled Zicam product, please call the US Drug Watchdog immediately at 866-714-6466, or contact the group via its web site at http://usdrugwatchdog.com/
How Many Americans Could Be Affected With The Recalled Zicam Products?
According to the US Drug Watchdog,"there could be millions of US households that have recalled Zicam Cold Remedy Nasal Gel, or Zicam Cold remedy swabs in their medicine chests, that need to be thrown away. However, if you have lost your sense of taste or smell, do not throw the recalled product away-its evidence you will need." For more information please contact the US Drug Watchdog at 866-7144-6466, or contact the group via its web site at http://usdrugwatchdog.com/
National Appeal: The US Drug Watchdog is asking every US citizen to share this press release with everyone they know. According to the group,"our greatest fear is that with the cold & flu season already here, completely innocent consumers will use one of the recalled Zicam products and lose their sense of taste, or smell forever." For more information please contact the US Drug Watchdog at 866-714-6466, or contact the group via its web site at http://usdrugwatchdog.com/
A Special Note From The US Drug Watchdog To All US Women & Mothers. "Please share this press release with everyone you know. Make sure these recalled Zicam products are not in your medicine cabinets at home." The group is saying, "we know of a young woman, who had a great job in the food & wine industry. She has lost her sense of taste & smell. She is now unemployed."
What products are affected by this warning?
FDA's action affects Zicam's three intranasal products that contain zinc. The three Zicam products claim to reduce the duration of the common cold and the severity of cold symptoms.
The products (listed with their size and product numbers) are
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Zicam Litigation Update
Posted by: euser
September 18, 2009
Topic: PRODUCT LIABILITY
The U.S. Judicial Panel on Multidistrict Litigation is scheduled to hear arguments next week over whether all federal Zicam lawsuits should be centralized and consolidated in one district as part of an MDL, or Multidistrict Litigation.
The hearing, which is scheduled for September 24 in Richmond, Va., will give plaintiffs and defendants a chance to present oral arguments for or against the consolidation. There are currently at least 10 lawsuits over Zicam pending in 9 different federal district courts against Matrixx Initiatives, which manufactured the over-the-counter cold remedy that was recalled earlier this year amid concerns that it may cause users to suffer permanent loss of smell.
The FDA warned consumers to stop using Zicam nasal gel and swabs on June 15, after receiving more than 130 reports of users developing anosmia, a condition where they are unable to smell. Although Matrixx Initiatives has maintained that their product is safe and does not cause loss of smell problems, they have since disclosed that they were aware of another 800 reports of Zicam side effects that were never turned over to the FDA.
The Zicam lawsuit complaints contain similar allegations that zinc gluconate, the single active ingredient in Zicam Cold Remedy, is toxic to the tissue inside the nose and is responsible for causing damage to plaintiffs ability to smell, detect odors or taste. In addition to the damage this condition can cause to an individuals quality of life, it could also lead to life-threatening injuries if someone is unable to smell dangerous fumes, smoke or food that has gone rotten.
Zicam products were not regulated or approved by FDA because they were listed as homeopathic treatments using natural products. However, at the time of the FDA announcement, Matrixx Initiatives was warned that they would no longer be permitted to market the homeopathic products until they submit data establishing the safety and effectiveness for FDA review.
At least one plaintiff, Stefanie Riepe, who filed a Zicam lawsuit against Matrixx Initiatives in the Western District of Missouri, filed a motion asking that all federal cases involving similar injuries and allegations be consolidated into an MDL to avoid inconsistent pretrial rulings, repeat discovery on issues common to all cases and to serve the convenience of the parties, the witnesses and the court. The plaintiff requests that the cases be assigned to the Western District of Missouri, but the MDL Panel will determine where the cases are sent if they determine consolidation is appropriate.
If the cases are centralized, as new cases are filed in various federal courts by Zicam lawyers who are currently investigating potential claims, they will be transferred into the MDL for coordinated handling during pretrial proceedings. If the cases do not settle or otherwise resolve, they will ultimately be returned to the courts where they were filed for trials.
Health Care Reform and Medical Malpractice
Posted by: euser
September 09, 2009
Topic: MEDICAL MALPRACTICE CLAIMS
While the nation debates how health care reform will be accomplished, the issue of medical malpractice claims continues to be brought up by those hoping to deny the rights of victims of malpractice.
- Medical malpractice has no place in the healthcare debate. Healthcare reform is about making sure that every American has access to quality, low-cost healthcare, not about limiting the legal rights of innocent patients harmed by medical negligence.
- Tort reform does not improve the quality of our healthcare system or produce cost savings. Forty-eight states have already enacted at least one medical malpractice tort reform measure. Yet, these legal restrictions have done nothing to improve our health care system-forty seven million Americans still have no health care, costs are still escalating and 98,000 Americans still die each year from preventable medical errors. Limiting the legal rights of injured patients will do nothing to fix these problems.
- Medical malpractice is about real people, with real injuries. The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors. And, this number does not even include the countless other people who are injured by medical errors. Rather than reforming the legal system that provides protections to these injured patients, we must focus on reforming the medical system in this country to prevent these errors from ever happening in the first place.
- There is no medical malpractice crisis. In 2008, medical malpractice payments accounted to 0.2 percent of all health costs - the lowest level on record. Furthermore, researchers at the Harvard University School of Public Health have found that nearly all medical negligence claims are meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death.
- Americans should not have to give up rights, in order to gain the right to healthcare. President Obama has repeatedly stated that in America, healthcare is a right. Likewise, Americans should not have to relinquish their constitutionally protected 7th Amendment rights in order to gain access to quality healthcare.
- Lawmakers should focus on the key issues. Achieving consensus on the health reform is an extremely delicate balance. Lawmakers must not unnecessarily insert extraneous, controversial issues such as tort reform into an already complicated issue.
- Health courts would be an expensive, bureaucratic nightmare. They would exchange a patient's constitutional right to a jury trial for a schedule of pre-determined outcomes that would be handed out by judges more interested in appeasing special interests than rendering justice to the injured patients standing before them. And health courts would not protect patients from wrongdoers, but instead, would shield doctors and hospitals from accountability for their careless, harmful acts. Health courts truly are an unfair proposition for patients.
