Helpful Articles

Medical Malpractice

Social Security Overview

For people that are disabled, there are two types of Social Security. One is Title 16, which is also called SSI, or “Supplemental Security Income”. SSI is for people who have not worked long enough or who have not worked in a number of years, or who are minors. With SSI, benefits can only be awarded as of the date of the application and not before. 

Title II, also known as SSA, and also known as “DIB” or Disability Insured Benefits, covers people that have paid sufficient work quarters into the Social Security system. In other words, you had to work twenty (20) quarters out of the last forty (40) quarters. A comparison of SSI vs. SSA:

1. SSI is $698.00 for 2012. SSA is a higher monthly amount, depending on how much you have paid in and for how long. 

2. SSI does not allow for a check for dependents unless child is also disabled. SSA automatically allows for a check for dependents under age eighteen (18). (Child may receive benefits to age 19 in some circumstances) 

3. With SSI, the recipient must not have more than $2,000.00 in the bank. With SSA, there is no financial limit on what assets a SSA recipient may own. 

4. With SSI, the recipient automatically gets TennCare immediately. With SSA, recipient gets Medicare, but there is a 2 year waiting period from the onset date the recipient is declared disabled. 

Do not become discouraged if you get turned down initially. Most people do. The earlier you contact a lawyer the better off you are.

(Excerpt from Tennessee Association for Justice, 2012)


Hot Coffee

Everyone has heard about Mrs. Jessica Goldstein. She’s the lady who spilled coffee on herself and sued McDonald’s. A jury awarded her a verdict of $2.7 million dollars! This verdict became the battle cry for “Tort Reform” and prayers for changes in our legal system to rein in run away “jackpot” justice. It worked. 

What most people haven’t heard about, they will learn by watching the documentary “Hot Coffee”.* A few tidbits: 

1. Mrs. Goldstein (then age 79) wasn’t driving, she was a passenger. Her grandson parked the car after they got their coffee from the drive-thru window, so that they could add cream to their coffee, at McDonald’s the customer puts their own cream in. 

2. The car Mrs. Goldstein was in did not have a cup holder or dash that coffee would sit on. She held her coffee in her lap to take lid off and put cream in. When she removed the lid the entire contents of the cup spilled into her lap, absorbed by the sweatpants she was wearing. 

3. All Mrs. Goldstein asked from McDonald’s was for McDonald’s to pay the amount of her medical bills that Medicare didn’t pay, and for future medical bills, $20,000.00. McDonald’s countered with an offer of $800.00. 

4. McDonald’s coffee wasn’t just hot. It was scalding – capable of destroying skin, flesh and muscle – on contact. She suffered full thickness burns (2nd and 3rd degree burns). She was hospitalized for eight (8) days during which time she underwent skin grafting and debridement treatments. The photos are shocking. 

5. McDonald’s admitted that more than 700 people previously made claims of being scalded by coffee. McDonald’s also admitted that it heated it’s coffee between 180 to 190 degrees, and that other establishments, and people at home, heated their coffee to 135 to 140 degrees. 

6. McDonald’s admitted that any beverage at 140 degrees or above will burn the mouth, lips, throat, etc. on contact. Yet, McDonald’s said they had no intention(s) of holding their coffee at any lower temperature, in spite of the admitted risk. 

7. Plaintiff’s expert testified that liquids beginning at 180 degrees will cause full thickness burns to human skin in two to seven seconds. 

8. The $2.7 million verdict is approximately the revenue McDonald’s testified they make in two days sales of their coffee. (McDonald’s testified that their revenues from the sale of coffee are in excess of $1.3 million a day.) 

9. After the verdict, the judge reduced the verdict to $480,000.00. The parties eventually reached a secret settlement that Ms. Goldstein could not discuss, but McDonald’s could. 

Mrs. Jessica Goldstein died on August 5, 2004 at age 91.

(Excerpt from Tennessee Association for Justice, 2012)


Caps on Medical Negligence = More Profits for Big Business, Fewer Rights for Tennesseans

Medical negligence caps are bad public policy for Tennessee. Here’s why… 

An unfair impact on Tennessee’s most vulnerable populations. Non-economic damages have the greatest impact on women, children, the elderly and low-income families. These types of damages compensate real injuries and losses, such as physical disfigurement, loss of mobility, loss of the ability to have children and loss of enjoyment of life. A person seriously injured often cannot perform the daily tasks that everyone takes for granted – brushing teeth, preparing family dinners and socializing with friends are often impossible for the injured. 

Caps increase profits for big business. Research shows that even as medical negligence cases decline, insurance premiums for medical professionals continue to rise. Last year the top 10 medical negligence insurance companies reported an average increase in profit of 31.2%, higher than 498 of the Fortune 500 companies. The medical negligence insurance industry has nearly doubled profits in the last 10 years. The insurance industry over projected their losses to justify new measures restricting the rights of those injured by medical negligence.

Consider: 98% of Medicare’s revenue is used towards paying claims; 87% of private health insurers’ revenue is used towards paying claims; but only 55% of medical negligence insurers’ revenue is used towards paying claims. About 45 cents of every premium dollar is kept by the insurance companies. 

States WITH CAPS often have HIGHER premiums for doctors-Insurance company profits are 24% higher in states with caps. When insurance companies pay out less, they keep more. Average premiums for internal medicine are 9.9% higher in states with caps; average premiums for general surgeons are 9.3% higher in states with caps; and average premiums for OB/GYNs are nearly identical for states with or without caps.

Doctors in Tennessee pay $10,000 below the national average for medical negligence premiums. If caps are enacted, chances are this will increase. In 2008, Tennessee passed a bill that required plaintiffs to give 60 day notice before filing suit and obtain a certificate of merit. Cases have dropped 60% , but premiums have not yet decreased.

Doctors are not leaving the state. Another myth being promoted in this debate is the issue of doctors leaving the medical profession because they cannot afford the insurance premiums. Data from the American Medical Association states the number of physicians has actually steadily increased over the years not decreased. Studies also show that the number of physicians has no correlation with insurance premiums. In fact, the number of doctors is 13% higher in states WITHOUT caps on medical negligence lawsuits. In Tennessee, the number of doctors working in the state per capita steadily increases each year. 

Lawsuits do not increase the cost of healthcare. The public has been lead to believe that medical negligence lawsuits are a main reason why health care costs are out of control. This is absolutely false. In fact, according to the Congressional Budget Office, medical negligence costs are less than 2% of overall healthcare spending.

Bad policy was enacted in other states. After caps were enacted in Texas, doctor’s premiums actually increased 19%. Texas legislators were forced to threaten the insurance companies with mandatory rate rollbacks. The rate of physician growth which rose steadily before caps, has not changed since caps were enacted.

(Excerpt from Tennessee Association for Justice, 2011)


Lawsuit Crisis!

No wonder our insurance rates are so high!

Have you heard the case about the man who put his RV on cruise control, had a wreck, and then he sued? The jury awarded him over $1 million because the manufacturer should have warned him that cruise control did not mean the same thing as "automatic pilot."

Or, how about the one where the lady in Texas was awarded $780,000 by a jury after breaking her ankle when she tripped over a "toddler" in a furniture store? The owners of the store were shocked at the verdict considering that the misbehaving toddler was the Plaintiff's son!

These stories are really eye-catching. Unfortunately, they are all lies.

Many people have searched and no one has ever found any such case. Apparently, this rumor started when a guy named Chuck Kirman in Los Angeles was interviewed on an investigative television show several years ago. He made up a story about a "stupid" Japanese business man who bought a Cadillac and tried to cruise out of the dealership and crashed into several other vehicles in the process. Apparently, the folks that make this stuff up thought it was tacky to use the derogatory term "stupid Japanese," seeing as how we are doing so much business with the Japanese and they are anything but stupid.

There really was a Kathleen Robertson of Austin, Texas, and she really was awarded $780,000 by a jury. The rest of the story is that it was not a little boy that tripped her, it was a Rottweiler that was owned by the business that she had entered during the daytime during regular work hours. The Rottweiler was not chained or restrained in any way and attacked here. She suffered severe injuries to both arms, including the loss of two fingers, which were later recovered from the dog's stomach after it was put to sleep. She also received severe lacerations to most of her face, the damage being so great that several plastic surgeons testified that surgery would have little beneficial effect. The Rottweiler's name: "Toddler."

These two cases are part of what you may have heard of as the annual "Stella Awards." Stella refers to Stella Liebeck, the lady who recovered a judgment against McDonald's over the spilled coffee. To make the annual "Stella Awards" look good, they use the law firm of Hogelman, Hogelman & Thomas of Dayton, Ohio, as the source. There is no law firm by that name in Dayton, Ohio. Once these stories get started, they get picked up on talk radio (guess which ones) and circulated as if they were "truth."

In 2000, the Institute of Medicine issued an assessment of medical errors that concluded that as many as 98,000 hospitalized Americans die every year, and one million more are injured as a result of preventable medical errors, all of which costs the nation an estimated $29 billion.

As a response, Congress held hearings and earmarked $50 million for research to help solve the problem. A key recommendation, borrowed from the aviation industry, was the mandatory reporting of serious errors. You would think that the medical field and all concerned would be interested in doing whatever was reasonably necessary to prevent this tragedy, which according to the Institute of Medicine kills more Americans than breast cancer, traffic accidents or AIDS. Not surprisingly, these bills met with fierce resistance by doctors and hospitals, which opposed mandatory reporting of mistakes.

Maybe there is more malpractice today because the nation's most exhausted and inexperienced doctors — more than 100,000 interns and residents who staff teaching hospitals — continue to work as many as 130 hour a week with little or no supervision. Further, hospital acquired infections, which kill about 90,000 patients annually, have increased 36% since 1980.

My guess for the most likely culprit is the urgency by which insurance companies are tossing people out of the hospital, for one-day surgeries, for things that used to require one week in the hospital.

Congress is considering a law pushed by the insurance companies and the medical industry and their friends in government to limit damages to $250,000 for pain and suffering. But is it fair for some old white men in a smoke-filled room to decide that the fates of:

  • Linda McDougal, a 16-year Navy veteran, accountant, wife and mother, who had both breasts removed due to a mix-up where her pathology slides got negligently switched with the slides of the lady who did have cancer.

  • Arthur Tucker, Jr., who lost a very important organ — unique to males — when a heat element slipped. When he complained, the nurse said, "Hang in there and be tough." When the doctor returned to the room an hour later, it was too late. After a month of indescribable pain, this male organ had to be surgically removed.

  • Amanda Davis, a 5-year-old, checked in to Nashville's Parkside Surgery Center for a routine tonsillectomy and died when she was accidentally given the wrong drugs.

You are only entitled to $250,000 damages for anything other than lost salary and medical bills? Or, should a jury decide?

By comparison:

  • In 1999, former Enron CEO and Presidential friend Ken Law sent an otherwise empty Enron jet to France to fetch his daughter home. Cost: $125,000 to Enron.

  • The Administration's latest tax-cut proposal would cut $220,000 off V.P. Cheney's taxes, the last year he was the CEO of Halliburton Corporation, which did over $19 million in business with Iraq the same year.

  • The pharmaceutical industry gave $17.5 million to one political party (guess which one) in the 2002 elections.

  • Finally, the $97.9 million dividend the Microsoft gave Bill Gates will be tax free if the Administration's tax proposal are made law.


The Innocuous Tree: Final Chapter

Your neighbor has a line of huge trees. The trunks of all the trees is clearly on your neighbor's property. The trees look healthy. The limbs of these huge trees hang over your septic line, roof, attic. The roots of the trees crawl into your septic lines, clogging them. Limbs fall onto your roof, damaging it.

Can you force the neighbor to trim back his trees or tree limbs and pay damages for the repair of the roof or septic line?

Yes. But this was not the law until the Tennessee Supreme Court said so on December 19, 2002. Previously, the Plaintiff had to show that the neighbor's trees were dead or dying, legally called "noxious." This decision makes a lot of practical "horse sense" to me and will allow the landowner to present to the Trial Court proof as to her damages for the fact that she had to take a bath at her neighbor's house for two years and had no running water for two years. And, the Trial Courts are now able to make a neighbor cut his trees or tree limbs before more damage is done.


Workers Comp Deaths

An employee is working for a construction company, and part of his job is to work in a ditch.

OSHA Regulations, which in Tennessee are called "TOSHA" (Tennessee Occupational Safety and Health Act) require that when you are in a ditch and for the protection of the worker, the company has to put trench boxes along the sides to keep the trench or ditch from collapsing and hurting the worker.

In this particular case, the company had previously been cited by TOSHA for not having these trench boxes. In spite of that, the company did not install the trench boxes and the trench collapses, killing the worker.

The issue in the case was whether or not the worker could collect anything more than workers compensation benefits. The answer from the Court of Appeals was, "No, he could not." The reason for this is the "exclusive remedy" rule of our workers comp law which says that if you are injured or killed on the job, the only remedy you have against the employer is workers compensation benefits, and you cannot sue for negligence, which in this case was, at a minimum, negligence and perhaps gross negligence.

During the time period that this worker died, the benefits could have been as low as $77.25 per week, which would have meant that the family would have been paid $30,900 for his death. This is if he had a family. If he did not have a wife and children, then at that time the worker's family got nothing.

A lot of employers feel that workers' comp is a rip-off and that workers do not deserve the benefits they get from the workers comp system. The result in this case seems pretty tough.


Prom Night

Having experienced three prom nights with my kids so far, the topic is obviously on our mind. If your kids are not motivated by staying alive, keeping all their bodily parts, etc., so as not to drink and drive on prom night, maybe the costs will mean something to them. I have asked around, and the average costs of a DUI defense is going to begin somewhere around $300-$500 and stop somewhere around $10,000.

Assuming your teenager lives at home and you own your own home or are purchasing it and/or one or both parents are employed, the Court will not appoint a public defender to represent you, nor will the Court let you represent yourself, even though you may want to plead guilty.

The likelihood of getting stopped on prom night is probably as good or better than any other night. Now that law enforcement has the extra added advantage of being able to stop you to see if you have your seatbelts on, this obviously will be used as an excuse to stop and see if there is underage drinking. While law enforcement may be a little more flexible with adults, who while drinking appear to be in full possession of their faculties, I feel comfortable that law enforcement will have no discretion whatsoever with teenagers. Given the reduced blood alcohol content percentages that set the maximum for all drivers in general and teenager drivers in particular, one or two 12-oz. beers within two hours of the time of the test in all likelihood would be sufficient to constitute an abnormal amount and be grounds for a conviction for driving under the influence.

Insurance is expensive and difficult to obtain for teenagers under the best of circumstances. Good grades can and will reduce these premiums. If your teenager gets a DUI charge, then insurance will be nearly impossible to obtain, when or if they get their license back..

Jeeps, Broncos, Explorers, Durangos and other types of sports utility vehicles can and will roll over as manufactured. They are much more likely to roll over with oversized tires and the other crazy modifications made by our teenagers. In our rural area, we have a lot of roads that do not have adequate shoulders, are too narrow, and the boundaries are not marked. When you combine teenager drivers, drinking, SUVs that tip over, roads with too high shoulders that are unmarked, you have a recipe for disaster. I can think of about five teenage deaths in the last couple of years where all these factors were involved. Teenage drivers believe that there is an "Angel of Mercy" following them around, or at least they act like it, or else they would not drive as crazy as they all do and we probably did as well. However, maybe attending a funeral, sitting in Criminal Court for a while, stopping a jail to see young people like themselves caged like animals, can help them realize the reality of what they are doing when they get behind a 3000 pound vehicle filled with alcohol.