Articles Posted in Nursing Home Neglect and Abuse

Johnson & Johnson’s own internal review of the hip implant known as the Articular Surface Replacement, or ASR, indicates that approximately 40% of the implants would fail within the first five years of implantation. Johnson & Johnson recalled the troubled hip implant in mid- 2010, yet did not release their internal analysis until after the recall.

The ASR recall is one of the largest medical device failures in years and raises questions as to what the managers of the DePuy Orthopedics Division of Johnson & Johnson knew about the hip implant’s problems before the implant was recalled. The ASR hip implant uses both a cup and ball component made of metal. Over time the grinding of the metal-on-metal device tends to produce metallic debris which damages the surrounding bone and tissue.

About 93,000 patients worldwide have received the Johnson & Johnson ASR. More than 30,000 of those patients are in the United States. Seven thousand ASR lawsuits have been consolidated in a federal court in Ohio and an additional 2,000 claims have been consolidated in a California state court action.

Sure, there are situations where trauma victims in isolated areas in immediate need of emergency surgery are rushed to the operating room by a medical helicopter. However, this seems to be more the rare exception than the rule.

Most air ambulance trips are much more mundane retrievals of accident victims who could just as easily and effectively be transported by ground ambulance. In those situations the medical helicopter is used because…it’s not in use and is too expensive to be left sitting idle. It is not uncommon in medical areas of cities to see multiple medical helicopters of competing hospitals sitting idle within sight of each other just waiting for something to do.

Are medical helicopters just one more glaring example of America’s out-of-control spending on healthcare?

The U.S. Supreme Court has granted cert in E.M.A. ex rel Plyler v. Cansler in which the 4th Circuit Court of Appeals upheld the pro rata formula in Ahlborn. Under Ahlborn when Medicaid pays accident related medical expenses and the Plaintiff subsequently obtains a recovery Medicaid may recover a proportionate share of the recovery. In the typical situation the injured victim sustain medical expenses, property damage, lost wages and intangible damages. The Ahlborn formula prevents Medicaid in the all-too-common situation where there is a limited recovery due to insufficient liability insurance from taking all of the insurance proceeds and leaving the Plaintiff with nothing in consideration of the other damages. For example, if an injury victim sustains $100,000 in medical expenses paid by Medicaid, $100,000 in property damage, and $100,000 in lost wages and there is only $100,000 in liability insurance then Medicaid would receive one third of the recovery. In such a situation Medicaid would like to take all the available funds and is challenging the limitation on Medicaid’s right to take all the funds.

To allow one interest holder to take all of the available funds is simply bad public policy. In such situation the injury victim, who advance all of the time, effort and expense in hope of recovering their damages, would have no incentive to pursue a claim and in the long run Medicaid would receive less overall recovery. This is a classic case of pigs get fat and hogs get slaughtered. If Medicaid gets its’ way then the Medicaid hog will be on its’ way to the slaughter house.

For more information visit

The Texas Supreme Court recently ruled in Texas West Oaks Hospital v. Williams that the employment related claim of a hospital employee alleging negligence on the part of the hospital resulting in injuries to the employee constituted a “health care liability claim” under Chapter 74 of the Texas Civil Practices and Remedies Code. At the Trial Court level the Employer moved to dismiss the claim on the grounds that the employee had not filed an expert report as required by Chapter 74 in medical malpractice claims. It is uncontested that the Employer was not rendering health care to the Employee at the time of the alleged injuries and that the Employer was a nonsubscriber under the Texas Workers’ Compensation Act. The Trial Court denied the motion and the Employer filed an appeal. The Appellate Court affirmed. The Texas Supreme Court reversed, holding that the Employees’ claims were health care liability claims under the Act and required the submission of an expert report.

The only thing that this employment claim had in common with a health care liability claim is that the claim was asserted against a health care provider. Is any claim against a hospital a health care liability claim under the Act? If a hospital breaches a contract, fails to pay its’ taxes, or defaults on a loan and gets sued is the suit a health care liability claim governed by the Act simply because the defendant is a health care provider? At this point the Supreme Court has so broadly interpreted the Act that virtually any claim against a hospital, or any other health care provider, might fall under the Act, thereby creating a special class of defendants under Texas law.

For more information visit

In Cosmetic Procedures Clinic of North Dallas v. Ayub the Dallas Court of Appeal held that claims arising out of lazer hair removal are not healthcare liability claims governed by Texas Civil Practices and Remedies Code, Chapter 74. As non-healthcare liability claims these claims are not subject to the onerous expert report requirement designed to make many legitimate medical claims cost prohibitive.

Chapter 74 defines a healthcare liability claim as a claim (1) against a health care provider or physician (2) for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, (3) which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. Chapter 74 has been so broadly applied that even janitorial services in hospitals and the actions of the delivery services that transport patients to and from medical appointments have been held to be subject to its’ requirements. Indeed, the joke in Texas is that anything that happens in sight of a hospital would probably be held to be protected healthcare under Chapter 74.

The Ayub decision is a refreshing application of common sense that has been largely missing in the interpretation of Chapter 74. The Court reasoned that lazer hair removal did not pertain to any medical condition, was not performed by one licensed to render medical care by the State of Texas, and does not constitute medical treatment under the terms of Chapter 74.

The 5th Circuit , relying on Great-West Life & Annuity Ins. Co. v. Knudson and Sereboff v. Mid Atlantic Medical Services, Inc., recently handed down a decision in ACS Recovery Services, Inc. v. Griffin, holding that an employee benefits plan set up pursuant to the provisions of the Employee Retirement Income and Security Act of 1974 (ERISA) could not recover its’ subrogation interest from a special needs trust established for the benefit of injured employee or from the loss of consortium settlement of the employee’s spouse.

The ACS Recovery case represents a significant departure from the general trend that ERISA plans get whatever they want. At the outset ERISA plans were intended to be a self-funded cost saving device for employers whereby the employer experienced a substantial savings over paying inflated health insurance premiums to traditional health insurance companies. As an added incentive ERISA plans were given the right to recover all of their payments in the event of a third-party liability recovery. The ERISA subrogation interest was not subject to the Made Whole Doctrine, the Common Fund Doctrine, or any other equitable offsets. The rather onerous result was that the injured employee ended up in effect being the free collection agent for the Plan at the employee’s expense. Most ERISA plans have adopted the self-righteous attitude they simply get all the money and that no one nor nothing else matters.

The ACS Recovery Services, Inc. v. Griffin decision is the first step toward putting the proverbial 700 pound gorilla back in its’ cage.

The original Medicare statute, 42 U.S.C. 1395, contains no provisions for a Medicare set aside in liability cases. The original statute provided for a set aside in worker’s compensation cases and those provisions have been extended by policy but not by regulation to liability cases. The CMS website has memos which shed light on the CMS expectations regarding Liability Medicare Set Asides (LMSA) but these memos technically have only the power of persuasion.

The Big R Towing case blessed the establishment of a LMSA. The Schexnayder case held that CMS approval of a LMSA is not required. The Guidry case in 2011 again approved a LMSA proposal. The United States Supreme Court in Chevron, 467 U.S. 837 (1984), set forth the analysis for determining whether an agency policy is enforceable. To be enforceable Congress must have spoken clearly on the issue or the agency’s position must be a reasonable interpretation of the statute.

The Medicare statute is silent as to LMSAs and Congress has not otherwise addressed LMSAs. The MSP Act is at best vague and ambiguous regarding the issue of LMSAs. Medicare has not me the Chevron test. In Christensen v. Harris County, 529 U.S. 576 (2000), the United States Supreme Court held that internal agency interpretations and memorandums have the power of persuasion only. Nonetheless, the prudent practitioner would be well advised to thoroughly document their file including showing the factors considered in determining if a LMSA is appropriate and preparing an allocation showing the amounts allocated to each element of damages.

The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. set forth the factors to be considered when determining the admissibility of expert scientific testimony. The factors are the degree to which the scientific theory has been or is subject to being verified by testing, the degree to which the science relies upon subjective interpretation by an expert, whether the theory has been published in professional publications or subjected to peer review and th rate of error of the technique.

The Texas Supreme Court has further defined and expanded the Daubert requirements in the cases of E.I. du Pont de Nemours Company v. Robinson, Broders v. Heise, United Blood Services v. Longoria, Merrell Dow Pharmaceuticals, Inc. v. Havner, Maritime Overseas Corp. v. Ellis and Gammill v. Jack Williams Chevrolet, Inc. The most noteworthy of these opinions is Havner which focused on whether the science applied by the expert was reliable. Havner added the requirements that the underlying data must accurate and the methodology sound.

Thus in presenting expert testimony it is critical that each of the foundational requirements be met before any expert opinions are elicited.

For a Tyler injury lawyer the Texas Supreme Court’s recent decision in Haygood v. De Escabedo creates new issues for which there is no easy answer. Texas Civil Practice and Remedies Code §41.0105 provides that an injury victim may recover accident related medical expenses that are actually paid or incurred. Until last week Texas law provided that a medical debt was incurred at the point that the medical services were rendered in the amount of the medical bill. The Texas Supreme Court has now decided that the amount billed is not the amount “incurred” and that a victim is limited to recovering the total of the amount paid by an insurance company, the amount paid by the victim and the amount outstanding.

Texas statutory and case law provides that a victim may recover reasonable and necessary accident related medical expenses. Texas law contains no evidentiary standards for the admissibility of the amount that a health insurance company paid pursuant to a provider agreement. Such agreements have nothing to do with reasonable and necessary expenses, principals of jurisprudence, or the Texas Rules of Evidence. There are no evidentiary standards by which to measure the validity of health insurance payments. Furthermore, Escobedo clearly states that evidence of health insurance or the amounts written off or adjusted by an insurance company continue to be inadmissible pursuant to the Collateral Source Rule.

Texas Civil Practice and Remedies Code §18.001 provides that reasonable and necessary medical expenses may be proved up by affidavit. Health care providers across Texas have, and will continue, to argue that the amount that they bill patients for their services are both reasonable and necessary. However, Escobedo specifically held that these reasonable and necessary medical bills are neither admissible nor recoverable, arguably invalidating Section 18.001. The Texas Supreme Court has held that only the amount paid is recoverable.

Medicare does not have a lien of any kind or nature let alone a “super lien.” Medicare has a statutory subrogation interest in the personal injury claims of Medicare beneficiaries for whom Medicare has paid accident related medical expenses. A lien is a property interest and an attorney possessing the property of another has certain ethical obligations and fiduciary duties regarding the handling of that property. Thus an attorney in possession of settlement funds in which a third party has a lien has a responsibility to see that the lien is not violated. The notion that Medicare has a lien upon personal injury claims was first fabricated by unscrupulous Medicare contractors who were collecting Medicare funds on a commission basis. These collection agents referred to the Medicare subrogation interest as a “lien” in an attempt to improve their negotiating position. This abuse came to a head in the case of Zinman v. Shalala when the Federal Court held that Medicare did not have a lien and ordered Medicare and its contractors to stop using the word lien to describe their subrogation interest.

A subrogation interest is an interest that attaches to a beneficiary’s right to make a claim. A subrogation interest reaches the claim and the beneficiary but does not reach the beneficiary’s attorney leaving the attorney free to act in the best interest of the beneficiary. Medicare’s subrogation interest is a creature of statute. While Medicare clearly does not have a “super lien” it might fairly be said that Medicare has a “super subrogation interest.”

The Medicare recovery statute at 42 CFR §411 creates a number of rights, duties, and obligations for not only the Medicare beneficiary but also for insurance companies, health care providers, and attorneys. Anyone dealing with a beneficiary who has received Medicare benefits in connection with an accident would be well advised to study the Medicare recovery statute carefully as Medicare’s right of recovery is neither a lien or a subrogation interest but actually a complicated hybrid of the two interests.