Category Archives: General

Energy Drinks

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Everywhere you look these days you see energy drinks. At gas stations, grocery stores, and promoted on popular race cars, the bottom of snow boards, and the sides of motorcycle helmets.  Energy drinks are big business.  According to one source, in 2011, the sale of energy drinks accounted for nearly $9 billion in sales.  But are they safe?  And more specifically, are they safe for children and teenagers?

Energy drinks are obviously to young people. Should we be concerned?  What about kids playing sports and drinking energy drinks as a performance enhancer?

One problem with energy drinks is that they are considered “dietary supplements.” Dietary supplements are governed by specific legislation, which allows the drinks to escape scrutiny from the FDA. Because they are considered “dietary supplements”, the producers of these drinks are not required to disclose the ingredients.

Recent studies reveal that there are safety issues with energy drinks.  This should come as no surprise.  Keep in mind, products like “Ultimate Orange” and “Hydroxycut” were popular energy supplements with athletes and bodybuilders in years past, and some of those supplements allegedly resulted in serious health conditions, including death.  In fact, the primary ingredient used for years in stimulant supplements, ephedrine, contains essentially the same chemical structure as cyrstal meth.  Ephedrine is now regulated, and hence, OTC medications containing ephedrine or ephedra or pseudoephedrine are difficult to buy over the counter because the ingredients can be used to make crystal methamphetamine.

An example of the serious risks of some energy supplements is found in the following quote from the Los Angeles Times in 2001.

At least three football players who died this year–Devaughn Darling of Florida State, Rashidi Wheeler of Northwestern and Curtis Jones, who played for a Utah indoor team–were found to have traces of ephedrine in their systems when they died.

In September, the NFL added ephedrine to its list of banned substances, following the lead of the NCAA and International Olympic Committee.

The NFL bans the use or distribution of products that include ephedrine, unless they are prescribed for medical use by a team physician. Also, teams and players are banned from endorsing manufacturers or distributors of those substances.

The ingredients in energy drinks have the same effects and the same potential consequences as the energy supplements that have been linked to multiple deaths in athletes a decade ago.  For example, the literature suggests that energy drinks raise blood pressure, increase heart rate, and place individuals with pre-existing cardiovascular disease at increased risk for serious medical conditions.  In other words, the studies suggest that energy drinks could be harmful to certain individuals, especially younger individuals with undiagnosed heart conditions.

Note:  Some of the information contained in this blogpost came from an article written by Kevin I. Goldberg that appeared in the March 2013 issue of Trial magazine.

 

Employer’s Lien Against Recovery in Tort Case Does Not Extend To Future Medical Expense

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Today, in Joshua Cooper v. Logistics Insight Corp., (1/16/13), the Tennessee Supreme Court affirmed two prior rulings in which it held that an employer’s subrogation right against an employee’s recovery from a third party in a negligence case does not include the amount of future medical benefits to be provided to the employee.

Mr. Cooper was an employee of MasterStaff, Inc., which assigned him to work at ProLogistics, Inc. Mr. Cooper was using a towmotor to move pallets from a trailer parked at a loading dock into the ProLogistics warehouse. An employee of ProLogistics moved the truck away from the dock as Mr. Cooper was backing out of the truck, and the towmotor fell out of the trailer. Mr. Cooper sustained “significant, permanent injuries” to his back and spine.

Mr. Cooper sought workers’ compensation benefits from MasterStaff and also filed a negligence claim in Rutherford County Chancery Court against ProLogistics and Logistics Insight Corp. MasterStaff intervened in the negligence action, asserting a statutory subrogation claim, including recovery of the amount of future medical benefits that it may be required to provide under the Workers’ Compensation Law.

Mr. Cooper settled his negligence claim against the defendants in Chancery Court and reimbursed MasterStaff for medical expenses paid on his behalf.  MasterStaff asserted that the settlement did not dispose of all the claims regarding future medical expenses. The trial court disagreed and granted a motion to dismiss.  The Court of Appeals held that future medical expenses could be proven by MasterStaff and remanded to the trial court for a determination of the amount of future medical benefits.

Today, the Tennessee Supreme Court reversed the Court of Appeals and affirmed the trial court, unequivically holding that an employer’s lien against an employee’s recovery from a third party provided by Tennessee Code Annotated § 50-6-112 does not extend to the amount of future medical benefits to be provided by the employer.

Summary of SMART Act which amended Medicare Secondary Payer Act

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After passing Congress late in 2012, the President has signed the SMART Act into law.  The Medicare Secondary Payer Act is supposed to guarantee that Medicare does not pay medical bills that are the primary responsibility of a third party. The SMART Act amends the Medicare Secondary Payer Act to streamline and improve the reimbursement process.

Section 201 (Calculating a Final Conditional Payment Amount & Appeals)

The Web Portal

CMS is required to maintain a secure web portal with access to claims and reimbursement information. The web portal must meet the following requirements:

  • Payments for care made by CMS must be loaded into the portal within 15 days of the payment being made.
  • The portal must provide supplier or provider names, diagnosis codes, dates of service and conditional payment amounts.
  • The portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award.
  • The portal must provide a method for receipt of secure electronic communications from the beneficiary, counsel, or the applicable plan.
  • Information transmitted from the portal must include an official time and date of transmission.
  • The portal must allow parties to download a statement of reimbursement amounts.

The Reimbursement Process

The SMART Act requires parties to notify CMS of when they reasonably anticipate settling a claim (any time beginning 120 days before the settlement date). CMS then has 65 days to ensure the portal is up to date with all of the appropriate claims data. CMS can have an additional 30 days on top of the 65 days to update the portal if necessary. At the expiration of the 65 and potentially the 30 day periods, the parties may download a final conditional payment amount from the website. The final conditional payment amount is reliable as long as the claim settles within 3 days of the download.

Resolution of Discrepancies

CMS is required to provide a timely process to resolve any discrepancies regarding the amount to be reimbursed. An individual can provide the Agency documentation to establish that the web portal is not reflecting an accurate reimbursement amount. CMS is required to respond to this documentation within 11 business days. If CMS does not make a determination within 11 days, the reimbursement amount as calculated by the beneficiary becomes the final conditional payment amount.

 Appeals

CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. These appeal rights are only applicable in the event CMS attempts to collect reimbursement from the plan. Beneficiaries must be given notice of any appeal undertaken by an insurance plan. Existing appeal rights for beneficiaries remain the same. 

Section 202 (Claims Threshold for Collection)

CMS, with input from the GAO, is required to calculate and implement a threshold amount for liability claims (excluding ingestion, implantation, and exposure claims) only. The threshold amount will be based on the costs to CMS for collecting an average claim. If an amount owed is under that threshold amount, CMS is barred from seeking repayment. The threshold will be calculated and adjusted annually. 

Section 203 (Reporting Requirements)

CMS has discretion in applying reporting penalties on insurance companies. Previously, any reporting error by an insurer was subject to a $1,000 a day penalty. The SMART Act amends the statute to allow for discretion in the amount of the penalty based on the severity of the violation. 

Section 204 (Use of Social Security Numbers in MSP Reporting)

CMS is required to modify plan reporting requirements within 18 months so that plans do not have to use SSN or health id claim numbers (HICN). CMS may have an additional 12 months if it affirms to Congress it needs more time. This provision addresses several policy concerns related to privacy and reporting problems. 

Section 205 (Statute of Limitations)

CMS only has 3 years from the time they are notified of a settlement to seek payment for medical services provided. This provision will eliminate a CMS push for a 6-year statute of limitations that had recently been argued in the 11th Circuit.

(This summary was provided by AAJ)

Contractual Statute of Limitation

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In Skaan v. Federal Express Corp, an opinion filed by the Court of Appeals of Tennessee at Jackson on December 13, 2012, the Court examined a contractual limitation provision in an employment contract.  The plaintiff filed a workers’ compensation claim and was eventually discharged from his employment.  Eight months after being termination, he filed a lawsuit for retaliatory discharge.  The defendant moved to dismiss the lawsuit by summary judgment based upon the following language found in the employment agreement:

“To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.”

 In Tennessee, there is a “strong public policy in favor of upholding contracts. . . . absent fraud or duress, the law generally holds parties responsible for what they sign.”  The Court then ruled that a determination of whether the contract was enforceable was a question of law; and thus, an appropriate determination for summary judgment.

In Tennessee, parties may contract for a limitation period shorter than the period prescribed by law; though it must be reasonable.  The Court held that the contractual limitation period was enforceable, and thus, the plaintiff’s claim was dismissed.  The Court cited Morgan v. Town of Tellico Plains, 2002 WL 31429084 (Tenn.Ct.App. Oct. 30, 2002)(upholding a 60 day contractual limitation period) as support for the holding.

Cell Phone Use Problematic while Driving

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A study from Western Washington University, published in Applied Cognitive Psychology on October 19, 2009, offered some remarkable findings with regard to cell phone use, including the following:
1. cell phone users walk more slowly and change directions more frequently;
2. cell phone users are less likely to notice an unusual activity, such as a unicycling clown;
3. cell phone use in a vehicle is “particularly problematic”
4. using a cell phone results in worse driving performance than being legally drunk (Strayer, Drews, and Crouch (2006).

District Court finds that no Federal law requires MSA in tort settlements.

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A recent Opinion from the U.S. District Court  in New Jersey, Jeffrey Sipler v. Trans Am Trucking, Civ.No.10-3550 (DRD) states very clearly that “no federal law requires set-aside arrangements in personal injury settlements for future medical expenses.”   The defense tried to impose a confidentiality clause and sort of a Medicare Set-aside (MSA) arrangement on the plaintiff after a settlement agreement was reached.  As is typical, the defendants agreed to pay a sum of money in exchange for a release of all claims.  Later they tried to require the plaintiff agree to certain provisions relating to Medicare, including one that he would not claim reimbursement from Medicare for future accident related medical expenses.  The plaintiff filed motion to enforce settlement.  The court enforced the settlement agreement without regard to future Medicare benefits.  Unfortunately this Opinion was released as “Not for Publication,” but it contains an excellent analysis of the current murky situation with Medicare and tort settlements.

Texting and Driving

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Over the last two years I’ve seen the devastation that can be caused by texting and driving.   People have come to our firm who have lost loved ones or suffered from catastrophic injuries.    the following public service announcement from AT&T shows the consequences of texting and driving.  Stronger laws need to be enacted to help prevent needless tragedies.  Please watch the following video on texting and driving: http://www.youtube.com/watch?feature=player_detailpage&v=IAjwWKIeESc

 

New Laws Take Effect in Tennessee

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The Tennessee General Assembly adjourned on May 1, producing 597 new laws, including the following:

 “Loser Pays”: A party who is represented by an attorney can now be required to pay costs and attorney fees, up to $10,000, if a civil proceeding is dismissed for failure to state a claim. There are six exceptions to the rule, including withdrawing the complaint or in good faith amending the complaint to state a claim upon which relief may be granted, and filing a good faith, non-frivolous claim for the express purpose of extending, modifying, or reversing existing precedent. The new law applies to claims filed on or after July 1. 2012. 2012 PC 1046.

 Qualified Protective Orders: Effective July 1, 2012, upon the filing of any “healthcare liability action,” the defendant can now petition the court for a qualified protective order allowing the defendant and their attorneys the right to obtain protected health information during interviews, outside the presence of the plaintiff or his/her attorney, with the patient’s treating “healthcare providers.” 2012 PC 926.

 Trespassers:  An owner of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing an injury after May 10, 2012. The new law also addresses when a possessor of real property is subject to liability for physical injury or death to a child trespasser. 2012 PC 922.

 Pain Management in Workers Compensation Cases:  Effective July 1, 2012, a new law includes within the definition of “utilization review” the prescribing of one or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding 90 days from the initial prescription of such controlled substances.  As a condition of receiving pain management that requires prescribing of Schedule II, III, or IV controlled substances, an injured or disabled employee may sign a formal written agreement with a physician prescribing the controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions. 2012 PC 1100.

 Interest Rate on Judgments: The interest rate on judgments in Tennessee has been 10%.  A new law sets the interest rate for judgments entered between July 1 and December 31 at 2% less than a formula rate per annum published by the Commissioner of Financial Institutions for June of the same year. For any judgment entered between January 1 and June 30, the interest rate on judgments is 2% less than the formula rate per annum published by the commissioner for December of the prior year. 2012 PC 1043.

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