If you are a patient at a hospital, don’t you think you should have the right to know whether anything bad happened to you while you were there?

For years, health care providers in Florida were able to withhold records from a patient that were created as a direct result of an adverse medical incident (when bad things happen) that occurred during that patient’s care.  In 2004, Floridians overwhelmingly voted against this practice, amending the State Constitution to give patients the right to access to all records made or received as a result of an adverse medical incident. That amendment is generally referred to as “Amendment 7” because it was the 7^th amendment when it was approved.

The pertinent part of Amendment 7 sets forth:

SECTION 25. Patients’ right to know about adverse medical incidents.—

(a)  In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.

(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.

Records involving an “adverse medical incident” are any records pertaining to medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient.

Since the passage of “Amendment 7”, health care providers have asserted a laundry list of confusing and flawed objections in an attempt to continue withholding records of adverse medical incidents from their patients.  The obvious harm of this conduct was that the patient was still prevented from accessing records relating to adverse medical incidents concerning that patient’s care, even when the law mandated that the patient should have access to those records.  Secondarily, the different circuit and appellate courts throughout the State were faced with the task of ruling on these objections, which resulted in inconsistent rulings governing the production of the patient’s records depending on the jurisdiction.

Fortunately, on January 12, 2012, the Supreme Court of Florida put an end to the improper withholding of patient records related to adverse medical incidents in the case of WEST FLORIDA REGIONAL MEDICAL CENTER, INC., etc. vs. LYNDA S. SEE, et al. (No. SC09–1997).  The Court rejected all of the objections and arguments made on behalf of the hospital, and reaffirmed the unambiguous language and intent of Amendment 7, which serves to provide patient access to records concerning adverse medical incidents, without boundaries.

Even with the recent ruling from the Supreme Court, hospitals and health care providers will undoubtedly continue to create new ways to unlawfully withhold records from patients concerning adverse medical incidents.

If you or a loved one have been injured as a result of medical malpractice it is important for you to contact an attorney specializing in the field to obtain these records; they are often vital to your case and will not be provided to you without a fight.

Physician: Before I agree to treat you, I need you to sign an arbitration agreement and a limitation of liability agreement.

Patient: What are those and why do I need to sign them?

Physician: Oh, they are nothing really for you to worry about. They only apply to you if I make an error while I am treating you and cause you damage.

Patient: So, we are starting our relationship off with an assumption that you will hurt me while treating me and, if you do, I should limit your liability for that error?

Physician: Well, I guess you could put it that way, but I prefer to look at it as you agreeing that you have faith in me as a physician and that none of that will ever really matter anyway.

Patient: I prefer that I get to keep my constitutional rights and that you buy insurance in case you screw up while treating me and cause me big bucks in further medical treatment as a result of your error.

Physician: Well, if you are going to be disagreeable before I even start treating you, I am not sure I want you as a patient.

Patient: If you are more worried about yourself, I am certain I do not want you as my doctor.

Physician: Good luck finding another one – we are all together on this one!

And so will go the discussions had in doctor’s offices and in hospitals if Senate Bills 1316 or 1506 are passed by the legislature in Florida and allowed to become law by the governor.

These bills include (3) major changes in Florida law to, once again, favor doctors over patients. It was not sufficient for hospitals and doctors to have capped damages they may have to pay in the event they negligently harm a patient. That legislation went into effect several years ago.

Now your doctor wants:

• To be able to speak with your other physicians without your permission and without the presence of you or your attorney; if you make a claim against your doctor over negligent care.
• To make it much harder to prove a case of negligence by requiring the nearly the same standard of proof required in a murder case.
• To be able to convince patients to sign mandatory arbitration agreements preventing patients from being allowed to file a lawsuit for negligence.
• To convince patients to sign an agreement further limiting the amount of damages, which can be collected in the event the physician or hospital negligently harms the patient.

All in all, what a nice little bill for the protection of doctors and hospitals.

Once again, the medical profession is taking steps to protect themselves and their own best interests; while stealing away the rights of their patients.

What is the net effect of bills like this? They are chilling since they allow health care providers to apply the threat of no signature – no treatment to patients. If patients refuse to give up constitutional rights by signing the agreements with physicians and hospitals, they may find the ability to get treatment is difficult.

The practical problem with this type of procedure is that most patients blindly sign the forms given to them by physicians and hospitals without really giving them thought or considering the effect they could have upon them.

Physicians have long abandoned the credo contained in the Hippocratic Oath: “I will apply measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

Keeping their patients from “injustice” apparently was lost along the way.

Do you know what “force placed insurance” means?

With any luck you will never have to know what it means, but typically it translates to:

• No control
• Inflated premiums
• Very limited coverage
• Increased mortgage payments

Force placed insurance on your home can happen under a number of different circumstances.

For example, your homeowner’s insurance company tells you they will only insure your home for the value of the structures and will not include the land; let’s say $200,000. The mortgage company tells you they want coverage in the amount of the mortgage at minimum; let’s say $300,000.

Force placement can happen with your mortgage company purchasing a policy for you that provides $100,000 coverage in excess of the $200,000 policy you obtain and your mortgage company then pays for both policies through your mortgage payment; usually increasing it substantially. It can also happen by your mortgage company telling you they will obtain a policy in the amount of $300,000 and pay for it through your mortgage; again usually increasing your mortgage payment significantly.

These two scenarios may not sound all that terribly unreasonable, right? They do not until the homeowner sees the amount of the premium being charged by the force placed insurance company. Premiums for the force placed coverage can be 5 to 10 times more costly than homeowners insurance you and I might buy from an insurance company.

Let’s take the following example:

• $2000 per month mortgage payment
• $6ooo per year premium ($500 per month)
• $2500 per month mortgage & insurance payment
• Forced placement increases insurance premium to $18,000 per year ($1500 per month)
• $3500 per month new mortgage & insurance premium

A more than 30% per month increase in mortgage payments would send many homeowners directly into foreclosure.

Also, almost always, the only “person” covered is the mortgage company with no insurance protection given to the homeowner at all.

How can they do this? There are many factors driving this trend; some legitimate, some semi-legitimate and some possibly fraudulent.

Mortgage companies must be permitted to protect their mortgage amounts. In today’s insurance environment, a homeowner may have their insurance cancelled (through no fault of their own) and may not be able to find replacement coverage. It is unfair to the mortgage holder to be without insurance to protect their mortgage amount in the event of fire or other catastrophe.

Mortgage companies often must place insurance rapidly and in geographic areas not favored by the standard insurance industry company. In Florida, for example, between legislators and insurance companies, they have mucked up the insurance environment so badly that coverage can be difficult to obtain. So, when mortgage companies have had to place quick coverage, they have often gone to “surplus lines companies”.

Surplus lines companies, at least in Florida, have virtually no regulation; their premiums are unregulated, their premium increases are unregulated, their financial solvency is marginally monitored and there is no protection provided in the event of a surplus lines insurance company bankruptcy.

Recently, Florida legislators have been toying with the idea of kicking homeowners out of the state sponsored company, Citizens, and sending a number of them to surplus lines companies. This, of course, is a colossally stupid idea, but that fact is likely not going to sway Florida lawmakers.

The American Banker reports that Wells Fargo has gotten itself in a potential jam as a result of force placing insurance with OBE Insurance Company and then receiving as much as a 40% commission for placing the coverage.

It is estimated that, in Florida, we are talking about over $50 million in premiums and at 40%, Wells Fargo is making $20,000,000 on force placing coverage. More commonly commissions are in the area of 15% to 20%, but that still would represent a windfall of as much as $7.5 million to lenders engaging in this practice.

So, the case filed in the US District Court in the Southern District of Florida provides significant potential financial loss for Wells Fargo. Judge Robert Scola, Jr. is the judge overseeing the litigation (Williams v Wells Fargo) and he issued a warning to Wells Fargo concerning their treatment of homeowners going forward:

“Wells Fargo has unabashedly set out its threats to retaliate against any homeowner seeking to avoid alleged excessive and inflated force-placed insurance premiums,” Scola wrote. The judge added that he intends to prevent the bank from “establishing post-litigation, vindictive business practices.”

It is likely that Wells Fargo is not alone in these practices. The New York Times reports that the NY Department of financial Services has sent out subpoenas seeking information from lenders about their respective involvement. Subpoenas have been sent to lenders including:

• JP Morgan Chase
• CitiMortgage
• Bank of America
• Citigroup
• Morgan Stanley Mortgage Capital Holdings

Should the words “force place insurance” come out of your mortgage company representative’s mouth, ask questions. Try to obtain coverage on your own or through your insurance agent.

Ask the mortgage holder:

• Who are they placing the coverage through?
• Is it a surplus lines company?
• Will you be provided with coverage in addition to the mortgage holder?
• Will the mortgage holder or any of its subsidiaries be receiving commissions from the force placed coverage?
• How much will the premium be?
• Are there alternatives?

Demand complete answers to your questions. If necessary, contact an attorney who practices in lender or foreclosure law. Contact the Department of Financial Services in Florida or the Attorney General consumer affairs office.

Riding a bicycle. Feeling the wind blow across your face and being able to take in the sights, smells and sounds around you has always been a fun adventure.

Riding a bicycle is also dangerous and should be taken seriously.

When you are riding a bike on the roadways, you are simply another vehicle. Unfortunately, you are a vehicle with little protection and one difficult to see.

So, how can you enjoy a ride and still exercise a level of safety? There are some basic things to remember:

Always wear a helmet. If something as simple as this can prevent or minimize head injuries, why would you not wear a helmet?

Control your bicycle. This seems like “biking 101”, but it is surprising how many people have only moderate bicycle handling skills. You would not go out on the roadway on a motorcycle or car without practice…lots of practice, so why go out on a bike without the same caution? Go to an area where there is no fear of traffic and practice riding, swerving, stopping and turning until you are completely comfortable.

Learn and follow the rules of the road. When you are travelling down a public roadway on a bicycle, you are simply another vehicle. You are obligated to understand and follow the rules of the road. In today’s urban areas, you may be provided a bike lane, but your obligations to signal, stop at traffic control devices and to watch for hazards is no different than if you were driving a car down the street.

Follow proper lane positioning techniques. It is important where you locate yourself within a lane. When to use the full lane and when to try and share a lane can mean the difference between a driver in a motor vehicle seeing you or being able to pass you safely. Ride a little further left so that a passing vehicle can better see you as they approach from the rear. Most riders have a tendency to want to hug the right curb or berm area, but this actually makes you more difficult to see since most drivers are not looking toward the right side of the road and this position allows you a reduced escape area should you need it.

Practice hazard avoidance skills. Go to a vacant parking lot area or similar place with space and no traffic. Practice quick stops, quick turns and dodging obstacles. Learn to safely dismount from your bike while moving. None of these skills are instinctual and they all require practice.

Think about common crash scenarios and consider ways to avoid or respond to them:

• Motorist pulls out from a side street or driveway.
• A left cross in which the driver turns left into or in front of you.
• Side swipe in which the vehicle driver tries to squeeze between the cyclist and the center-line, median or other traffic markings. Ride to the left a little to discourage drivers from this.
• Right-hook in which a driver makes a right hand turn in front of you, through the bike lane.
• Welcome door in which a driver opens the door of their parked vehicle right into the path of your bike, without looking in their side view    mirror.
• Watch for blind spots especially at intersections. A car turning left may not see you clearly if your bike is positioned at the rear right edge of a truck or car.

Distracted driving on a bicycle is no different than it is in a car, truck or motorcycle. Focus on the task at hand. Eliminate cell phones, music players and all other distractions. Remember that “multi-tasking” is a myth and one that, while riding a bike, could prove to be deadly.

Know and follow the laws. In Florida, most of the bicycle regulations are covered under Florida Statutes Section 316.2065 and they provide, in summary:

• A bicyclist has all the rights and duties as does the driver of any vehicle on the roadway.
• Your bike must have a “permanent and regular seat attached” to it.
• No more than one person at a time may ride a single bicycle; except a child securely attached in a backpack or a seat/carrier designed to carry a child and protects the child from the moving parts of the bike.
• A bicycle rider or passenger under the age of 16 years must wear a bicycle helmet properly fitted and which meets the standards set forth by the American National Standards Institute (1984).
• No person riding a bike may attach themselves to a vehicle upon a roadway.
• People riding upon a roadway may not ride more than two abreast and only then if they do not impede traffic.
• Bike riders must maintain at least one hand upon the handlebars at all times.
• Any bike in use between sunset and sunrise must be equipped with a white light ion the front, which is visible at least 500 feet to the front of the bicycle and a reflector on the rear visible from a distance of at least 600 feet.

So, when riding a bike, exercise caution, good sense and always keep safety in mind. You are simply another vehicle upon the roadway with all the rights, but also all the duties and obligations of any other vehicle.

Do you believe that before you pay for a service or a product that it is acceptable to ask for what exactly you are being charged?

I would never have thought to ask that question yesterday. The answer seems reasonable and straight forward, right? Of course, if you are buying something you get to ask exactly what you are receiving for the money you are going to pay.

Well, apparently hospitals in North Carolina and, in fact nationwide, do not feel that way. I read this in a case of a North Carolina man, Robert Talford, who had the temerity to question the Carolinas Medical Center about a bill for a three day hospital stay.

Mr. Talford received a hospital bill totaling $19,975 for his three day hospital stay. He disputed it and wanted to know the basis for the charges. Carolinas Medical Center sued him and a state appeals court ruled that because “…the hospital bill submitted into evidence by the Charlotte-Mecklenburg Hospital Authority doesn’t itemize the charges, and the only evidence that the costs were reasonable come from hospital employees… a trial should weigh whether the hospital’s price was right.”

It seems unreasonable to pay an unitemized bill in the amount of over $19,000 and, if the Carolina’s Medical Centers can not substantiate the bill, it seems reasonable that Mr. Talford should be permitted to go to court. Mr. Talford reports that the hospital once charged him 24 times the actual retail cost of a pill, which may be the reason for his questions.

Now, even though the bill is not itemized and they apparently will not provide Mr. Talford with the proof to substantiate the amounts charged, the hospital’s lawyer says:

“If every single contested hearing becomes not an hour or two but days, there will be a significant impact on the court system, as well as on doctors and hospitals,” Fuller said.

“The fact that medications delivered at a hospital are pricy is no secret and no surprise, since charges must cover the overhead costs for nurses, doctors, equipment, meals, and constant cleaning, Fuller said. But it’s also true that a plate of chicken piccata might be $20 at a Davidson restaurant he frequents, and Fuller said he’s willing to pay though the cost of the ingredients may be ten times less because of the value of the eatery’s atmosphere,” Fuller said.

Let’s try to put this all in some perspective and do a “chicken piccata” analysis.

The hospital must charge for the overhead of a nurse delivering me a pill. Okay, but in Mr. Talford’s case, for example, the hospital charged him $14,000 for the stay and $5500 for the bed. So, the bed apparently cost around $1,800 per day and the over $4600 per day was for overhead, like pill delivery. I mean the doctors all charge separately, so we know the hospital charge was strictly for hospital services.

Now, when you break the costs down on a per day basis that sounds a little pricey to me. I will give you that we do not have the details for the charges relating to tests and similar costs, but that is what Mr. Talford is trying to understand, so we are left with the above, primitive, analysis.

I think many of us have had the experience of receiving a bill from a hospital and having to be revived after reading it. Personally, I have never slept in a bed I thought was worth $1800 a night, but that is just me.

I was hospitalized for three days myself. When I received a bill from the hospital for over $30,000, I nearly required hospitalization again, but wasn’t I relieved when the hospital agreed to accept less than $10,000 in payment of all those charges from my insurance company.

Mr. Talford is clearly in the right to have “asked” for a detailed explanation of what he was paying for. After all, there apparently can be as much as a 66% deviation in costs depending on who is paying the bill.

So, if you would ask for a detailed explanation of what is included in the box for a TV before you pay for it, let’s say, I think you are well within your rights to ask about a hospital bill.

This whole “defensive medicine” bandwagon that physicians and their associations have pounced on continues to be a bit of a mystery to me.

The argument goes that because physicians are so very afraid of being sued, they order tests that are actually unnecessary. First, I have to wonder if the “unnecessary test” ordered for a patient that actually discovers a significant finding is included in their tally, but I know if I were that patient I would be in favor of the medical communities’ “unnecessary testing”.

In addition, their entire argument ignores the lack of any objective study or statistics supporting their claims that “defensive medicine” practice is necessary to begin with; but that is another article for another day.

MedPage Today reported that the following types of tests are ordered by orthopedic physicians and the percentages represent the alleged “defensive medicine” label:

• Plain x-rays: 19%
• CT scans: 26%
• MRI scans: 31%
• Ultrasound studies: 44%
• Blood and other lab tests: 23%
• Biopsies and aspirations: 18%
• Subspecialty referrals and consultations: 35%
• Hospital admissions: 7%

In the same publication, orthopedic physicians claim they have ordered a total, nationwide, of $2.1 billion per year in “defensive medicine” tests.

Now, one of two things are true it seems to me:

1. The tests being ordered are based upon signs and symptoms that the physician believes, based on their experience and training, are needed in order to be sure a patient does not have one injury, disease or another; or
2. 20,400 orthopedic surgeons are committing $2.1 billion per year in fraud.

Let’s take a common place example. If a plumber was worried about being sued and performed $5000 in unnecessary repairs, what would we call that? I think “fraud” or theft are probably the words most people would use for the plumber’s actions.

Physicians, however, boldly admit to fraud, but claim they have a good reason for committing that fraud(?)

A spokesman for the American Academy of Orthopedic Surgeons was quoted:

Asked about the disconnect between the judicial system’s and physicians’ interpretations of medical necessity, Jahangir told MedPage Today that evidence-based clinical practice guidelines would go a long way toward eliminating it.

Such guidelines, he said, would better define what constitutes necessary versus unnecessary procedures — “what really needs to happen [to achieve] the patient’s best outcome.”

Let me interpret for you: Dr. Jahangir’s group wants “evidence based clinical practice guidelines” changed in order to give physicians “cover when they fail to order a test that reasonably should have been ordered in the best interest of the patient. Not in the best interest of insurance companies or physicians, but in the best interest of the patient.

I have said this a number of times before. These tests that doctors want to claim are ordered as a result of their supposed need to practice defensive medicine are either medically necessary or fraud. You simply do not get to call a pig anything other than a pig!

Our law firm has tried eight trials in a row to successful plaintiffs’ verdicts; involving what has become known as the “Engle Progeny Cases”. These cases arise from the “Engle” case tried two decades ago in which juries heard 12 months of evidence and made a series of findings about cigarettes. Subsequently, the Florida Supreme Court found the following facts about the conduct of tobacco companies including:

• Cigarettes are addictive.
• Tobacco companies concealed important information about the dangerous health effects and the addictive nature of cigarettes from the public.
• Smoking cigarettes cause over 20 different diseases.
• Cigarettes are a defective product placed in the market by tobacco companies.
• Cigarettes are unreasonably dangerous as manufactured by tobacco companies.
• Tobacco companies conspired to conceal from the public important information about cigarettes and the dangers of smoking.
• Tobacco companies were negligent.

Those of us in this law firm who have worked on cases against the tobacco companies have read the documents used in the Engle case and other cases, including the Minnesota Attorney General’s case. Once you read and review those documents it could not be clearer that all of the findings by the Florida Supreme Court set forth above are absolutely, crystal clear. In fact, because so much evidence and so many documents exist, most of it is never exhibited at the trials of cases against tobacco companies by tobacco company victims – most jurors never see but a small fraction of all of the evidence available .

We have seen the evidence of an industry that has made a science out of hiding, lying and manipulating. We have seen the documents summarizing plans by the tobacco companies to manipulate the nicotine in cigarettes; to create marketing plans that target teenagers; and to create “scientific” data in order to support the message that smoking cigarettes is actually good for you. Tobacco’s marketing plans for doctors to tell the public that smoking is good for you; athletes talking about smoking cigarettes improving their “wind”; and movie stars glamorizing the entire smoking genre – all are diabolically brilliant.

So, quite frankly, members of our firm were not at all surprised that we received two verdicts in favor of our clients and against the tobacco companies; in two different trials; tried in two different parts of Florida. The fact is that when anyone involved in the trial of tobacco cases hears about a verdict in favor of the tobacco companies, we are, well, shocked.

It is inspiring that two juries; in two different geographic locations; with two different sets of lawyers, can reach the same conclusion: the tobacco industry addicted people to a drug they knew was one of the single most addictive drugs in existence and then further manipulated that drug to increase its desperate hold on smokers. Then this industry literally invented the art of propaganda marketing and threw billions of dollars to make it successful.

We are pleased that our clients received their opportunity for justice in receiving verdicts of $3.5 million in one case and $2.7 million in another case. We would also like to recognize the talented attorneys who tried these cases: James Gustafson, Matthew Schultz (Levin, Papantomio law firm), Brian Denney, and Hardee Bass.

These were truly victories for “the good guys”.