Tort Reform Results: Higher Insurance Profits, Lower Patient Safety Initiatives & Higher Med Mal Premiums for Doctors

A recent Forbes article written by Steve Cohen entitled, "On Tort Reform, It's Time to Declare Victory and Withdraw", debunks the myths set forth many years ago when the catchy phrased initiative first started. Given the many states that have passed those "reforms", aka insurance company dream goals to make more money, quantitative information is available to actually measure results. Since many of you went along hook line and sinker, let's see what you have done to yourselves. Drum roll please....

  • FALSE: ER doctors had a fear of malpractice lawsuits and thus ordered unnecessary care causing wasteful healthcare spending and costing us all. With tort reform in place, ER doctors have not stopped ordering unnecessary care and raising healthcare costs.  

This Forbes article sites an investigating in The New England Journal of Medicine entitled, "The Effect of Malpractice Reform on Emergency Department Care" which determined:

BACKGROUND

Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice

RESULTS

For eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina.

Mr. Cohen goes on to write that:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”
 
None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent. 
 
  • FALSE: Medical malpractice premiums will be lower for doctors with reform in place as insurance companies will pass along the savings. HAH! As a lawyer working against insurance companies,we all knew this was a scam but it was still shocking how many people believed it. 

 

While insurance premiums haven’t gone down, their price increases in tort reform states have gone up a little slower than in non-reform states – the lag is between 6% and 13%.  That hasn’t constrained the insurance industry from showing record profits.   Average returns for malpractice carriers hover around 15.6%, far better than the 12.5% for the property/casualty segment. And the malpractice insurers’ loss ratio – the percentage of claims to premiums — is a remarkably low 61.1%.

In 1999 the Institute of Medicine at the U.S. National Academy of Sciences published its seminal study,"To Err is Human",  which concluded that between 44,000 and 98,000 patients are killed (and many more injured) in hospitals each year due to medical errors. That number – which is more than automobile and workplace accidents combined – doesn’t include deaths in doctors’ offices or clinics – such as the one where Joan Rivers recently died.  By 2011, a study in "HealthAffairs"  estimated the number of avoidable deaths was probably closer to one million.

It's unfortunate that so many Americans were duped by the evil insurance companies but there is still hope for change. Remind your legislative representatives that these myths have been debunked and tort reform is never a good idea.

The judicial system is in place for a reason and that is to allow a jury of your peers to hear the facts and evidence presented by our rules and make the most informed decision. 

Trammell & Mills Law Firm, LLC does not handle medical malpractice cases but we know several good law firms in the area that do, if you need assistance. However, we can not stand to see Americans constantly steam rolled by insurance propaganda. Start educating yourselves on the facts, not on the fluff and feel good. 

 

 

Injured on the Job? Too 'Job Scared' to File a Workers' Compensation Claim?

Many times we see potential clients fail to follow through with a Workers’ Compensation claim because they are “job scared.”  Some of the individuals may have a promising but new career with their employer, other times the individual has been employed with the same company for 20+ years and fear losing a good job.  If you have been injured on the job and are job scared, please read this before deciding NOT to pursue a Workers’ Compensation claim.

It is illegal in South Carolina for an employer to fire an employee for initiating a Workers’ Compensation claim.  S.C. Code Ann. § 41-1-80 states:
 
 “no employer may discharge or demote any employee because the employee has instituted [in good faith]. . .” a Workers’ Compensation claim.
 
If you are legitimately injured while on the job and file a Workers’ Compensation claim against your employer, your employer can not terminate you for that reason
 
However, the law cited above does state that while you are pursuing a claim, your employer can fire you for other reasons, most commonly:
 
a) intoxication on the job;
b) destruction of the employer’s property;
c) habitual tardiness or absence from work;
        d) failure to meet established employer work standards;
        e) malingering; or
        f)  embezzlement.
 
If you do decide to pursue a Workers’ Compensation claim, while still working, we inform our clients to ALWAYS report to work on time and stay on their best behavior while on the clock. If your employer is attempting to fire you while under a Workers’ Compensation claim, they will try and find a justifiable reason to terminate you that is unrelated to your job injury.    
 
If you are injured on the job but afraid of being terminated for pursuing your rights under the South Carolina Workers’ Compensation laws, it is always advisable to speak with an attorney first.  We offer free consultations, so do not hesitate to call Ernie Trammell or Roy Trammell at the Trammell & Mills Law Firm, LLC located in upstate South Carolina as soon as possible after your work injury.  
 
 
THIS ARTICLE WAS WRITTEN BY ROY TRAMMELL, a Workers' Compensation attorney
Call and let Roy handle your case today, 864-231-7171 or trammellandmills.com 
 

South Carolina's Golden Corner's Only Super Lawyers Rising Star for 2015

The triad of counties encompassing the Golden Corner of South Carolina, Anderson, Oconee, and Pickens, only have one (1) attorney recognized by Super Lawyers as a Rising Star in 2015- Congratulations Trey Mills

Floyd S. Mills III, aka "Trey", has been recognized again in 2015 as a Super Lawyers Rising Star in South Carolina . As a partner at Trammell & Mills Law Firm, LLC, Mr. Mills practices only personal injury law which encompasses anyone harmed by the negligence, ignorance, or omissions of others. Trey loves fighting against faceless insurance companies that only seem to know one word, "No." 

The motivating factor that caused Trey Mills to become a lawyer was when he was dying of leukemia, more specifically ALL, at the age of 17 and heard his mother constantly yelling on the phone with insurance providers pleading with them to process payment to the wonderful medical facilities, medical workers, and doctors that were trying to save his life. The only reason that evil insurance company didn't make payment, delayed payment, or tried to deny payment was because it was very expensive to cover the costs of a dying human and insurance companies are in business to make money not save lives. Well fortunately, Mr. Mills lived but more importantly others impacted by the evil insurance companies can now have someone that is truly:

  • on their side, not on the side of the negligent party (Nationwide);
  • providing a helping hand and pat on the shoulder versus the good hands around your neck (Allstate);
  • your neighbor in Anderson & Oconee Counties, not in some call center in Duluth, GA (State Farm);
  • not going to equate you to a dog and pat you on the head to recognize good behavior (Travelers);
  • not going to have some crazy eyed, all white dressed woman named "Ho" to berate you (Progressive); or
  • not consider you to be the scapegoat for someone else's actions or lick his eyes with his tongue (GEICO).  

 

 

 

 

The selection process for being selected into this group is as follows:

The selection process for the Rising Stars list is the same as the Super Lawyers selection process, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. All attorneys first go through the Super Lawyers selection process. Those who are not selected to the Super Lawyers list, but who meet either one of the Rising Stars eligibility requirements, go through the Rising Stars selection process. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list

 

Are You Covered By Workers' Compensation If You Fall at Work?

         Don't fall victim to the "There Ain't Nothing Wrong With the Floor" defense. If you trip over an object on the floor at work and fall, you are almost certain to be covered by the workers’ compensation laws.  But what happens if you simply fall at work on a completely level floor or on a smooth rug and there is no obvious cause for your fall?  What if your employer responds that you can not get workers’ compensation benefits because “there ain’t nothing wrong with the floor” to have caused you to fall?  Is the employer right?

Let’s look at three different scenarios:
Situation 1
 
Assume that my paralegal, Ashley, is walking down the hallway at our office with a hand full of files and trips over a magazine that had been inadvertently dropped on the floor by a client.  Is she covered under our workers' compensation laws?
 
Yes, she is covered because she suffered an injury by accident at work during the course and scope of her employment.  Since the workers’ compensation system is a “no fault” system, it doesn’t matter whether Ashley could have avoided that accident because fault is irrelevant in a workers’ compensation claim. 
 
Situation 2
 
Let’s now assume that Ashley is walking down the hallway at our office with a hand full of files and loses her balance and falls for no apparent reason.  There was nothing specifically on the floor that had caused her to fall.  Is she covered under our workers’ compensation laws?
 
Yes, she needs only to prove a causal connection between the conditions under which the work is required to be performed and the resulting injury.  The fact that Ashley suffered an “unexplained fall” does not preclude her from being covered by workers’ compensation.  There does not have to be some work hazard on the floor causing the employee to fall in order for there to be workers’ compensation coverage.  Instead, she again only needs to prove that she was injured during the course and scope of her employment.  It is no defense for the employer to deny coverage because  “there ain’t nothing wrong with the floor” to have caused you to fall.
 
Situation 3
 
Let’s assume that Ashley has a bad knee which has bothered her for years.  As she is walking down the hall with a hand full of files, her bad knee simply gives away and she falls.  There was nothing on the floor that had cause her to fall.  As she was being helped up from the floor by her co-workers, Ashley responded that “my knee just gave away.”  Is she covered under our workers’ compensation laws?
 
No, in this case Ashley would be determined to have suffered an “idiopathic fall.”  That is a fall caused solely by an inherent medical condition (the bad knee) or weakness which is specific to Ashley.  An “idiopathic fall” is much different than the “unexplained fall” described above in Situation 2.  In an “idiopathic fall” the burden of proof is on the employer to establish that the fall was caused solely by Ashley’s inherent medical condition.  It will be easy for the employer to prove that Ashley’s fall was idiopathic because she admitted it when she told her co-workers that “my knee just gave away.”  A fall caused by fainting is also an example of an idiopathic fall.
 
The Moral of the Story
 
If you suffer a fall at work, you will be covered by workers’ compensation if a specific work hazard (like water on the floor or an object on the floor) causes you to fall or if your fall is simply unexplained.  The only way you lose is if the employer can prove that your “unexplained fall” was actually an “idiopathic fall” in that it was caused solely by your inherent medical condition, which had nothing at all to do with your work or work environment.  Therefore, if you do have the misfortune of falling at work, by all means tell the truth to your employer as to what happened but don’t carelessly make a statement in the midst of your natural embarrassment that you fell because your bad knee gave away (unless that is in fact what happened)!
 
If you fall at work and have questions regarding your claim, please do not hesitate to contact Ernie Trammell at Trammell & Mills Law Firm, LLC.   Ernie Trammell has been a practicing law for 32 years and has focused the last 15 years of his practice solely on representing injured workers in workers’ compensation claims in South Carolina and Georgia

 

RELATED ARTICLES by Ernie Trammell:

 
 
 

 

Insurance Adjusters Admit to Being Fined for Saying Yes

Many of us remember the "Just Say No" Campaign in an effort to fight the war on drugs. Green shirts were promoted among children with the popular saying to try and thwart our small minds from saying "Yes" to experimental drugs.  In the name of public policy a governmental agency created a slogan, provided t-shirts to poor children and pushed their agenda through the public education system keeping many from being able to enjoy the high of quality street drugs.  

Apparently this "Just Say No" campaign was not just one for the war on drugs but was also accepted by major insurance companies such as Progressive, GEICO, Liberty Mutual, Safeco, GAINSCO, and Sentry. Just recently, guilt ridden insurance adjusters have come forward admitting that anytime they would say the word "Yes" on the phone with a claimant, they would be fined $500.00. Adversely, the more times they said the word "No" the more opportunities they would have for a professional advancement. 

Many of you have probably encountered this type of interaction after being involved in a motor vehicle collision or having an insurance claim against one of these companies when all the adjuster on the other end of the phone would say is "No".  A recent transcript was released in the article detailing this incident and illustrated how the slogan worked to make billions after taxes for these companies:  (Person Injured- PI) & ( Adjuster Saying Slogan - ASS)

PI: I was just injured by one your insureds when they slammed into the back of us while drunk and driving with a suspended license. 

ASS: No, you didn't. Not possible. No way that could happen. 

PI: Hello? I'm sorry what did you say?

ASS: No. 

PI: No, what?

ASS: No. No means no. No, no, no.

PI: We seem to have a disconnect here. I have an accident report showing what I just told you and video on my phone showing your insured stumbling out of the car with two cases of beer and trying to make a run for it. He didn't get far before he fell face first into a ditch and just started drinking again. 

ASS: Sir, we do not provide insurance to people that drink and do bad things. If we do, we say they didnt do it, we then deny the claim, delay it, and defend it in court just to prove to you we mean no. 

If you have an experienced this kind of interaction with the above companies, please give us a call as we are looking for class members to fight against this injustice. It may be the first day of April, aka April Fools Day, but we are still here to help you and believe this is real. 

 

OTHER ARTICLES WRITTEN FOR THIS SPECIAL DAY

Trey Mills Retiring at 36

Allstate Makes Me an Offer I Can't Refuse

South Carolina Litigation Firms Admit They Only Litigate for Insurance Companies

 

 

 

 

Workers' Compensation Reform Horrible for Workers in South Carolina

 A recent article by NPR illustrates what is wrong with any legislation put forth in the name of "reform". This article provides quantitative evidence and examples of why the workers' compensation system is broken. Our very own Ernie Trammell has provided articles about South Carolina Workers' Compensation issues writing, "Injured at Work in South Carolina? What you need to know. (Part 1)" & "Injured at Work in South Carolina? What you need to know. (Part 2)"  . 

For an in depth analysis, historic background on the intent, and current state of workers' compensation laws, you should educate yourself with this article. More importantly, you should arm yourself with an attorney if you have a workers' compensation claim:

Injured Workers Suffer As 'Reforms' Limit Workers' Compensation Benefits

 

 

What I Learned from a Drunk Juror at the Esso Club in Clemson

The Clemson football team had the NC State game handled by halftime so my wife and friends convinced me that a walk to the Esso on this beautiful afternoon was a good idea. Trying to enjoy the time my wife and I have together with her out of nurse anesthetist school now and no kids, I obliged. The ladies were quick to try and find a restroom not made of plastic and almost full, while the men were expected to work through the crowd at the bar for adult beverages. Having attended Clemson, I was familiar with the Esso and strategic spots to approach for the best leverage and line of sight with the bartender. Not to mention, I could now afford to hold out a $20 bill.

As I approached my honey hole of a spot at the bar another gentleman in front of me turned around. I am about 6'2" and I had to look up a good many inches to him. He had apparently been there all day for this 3:30pm kick off based on the swaying motion I observed as he double fisted two orange Bud Lights. I was unclear of his intentions as he shouted and pointed at me saying, "I know your face!". I made some comment that I have a familiar face and he then asked if I was in sales. I said no and continued to try and get the drink order in. Then he said, "What do you do then?". When I said, "I am a lawyer." That seemed to help him clear all the clouds in his head and put it together as he shouted, "You're a *& liar!" Well, alcohol or no alcohol those are usually words that help escalate things and his three friends turned around and I felt my wife push past me in between us and start to divert the conversation.

We were both Clemson fans and I can not stand to see in fighting. I was relatively calm for the situation and simply asked why he would say that. He went on to explain in a round about way that he was a juror member on a recent trial I had in Westminster Magistrate Court in Oconee County where my two clients were liars. My bell went off then and I remembered his disinterested looks, attempts to raise my voice to wake him up during the trial, and total apathy in the whole trial process he was invited to participate in that work day. 

Realizing the gold in this opportunity to talk with a juror after a trial where inhibitions were low and honesty high, if not unfiltered, I asked what he disliked about the trial. He listed several things:

  1. The fact that he had to miss work to be there;
  2. My clients looked like they were liars; and
  3. I was an attorney willing to lie for them but in an educated way.

I tried to get him to be more specific but he could not remember the facts of the case or anything about the case. (It was a motor vehicle collision where the at fault driver pulled out into traffic and then immediately backed up into my clients after realizing he pulled in front of someone else. The insurance company for the at fault driver played hardball and made offers lower than the emergency room bills so we had to try the case). Plus if you have ever been in the Esso during a game, it can be difficult to carry on an indepth conversation. 

As I tried to pull more information out of him to improve my future chances of not being called a liar simply because I am an attorney, he finally softened up a little bit and said: "You know, I will give it to you though. You made me think. When I came in and sat down I immediately knew your clients were lying. (He made this decision prior to any parties being named plaintiff or defendant or hearing any attorney speak). He then said, "After you presented the case with your 'silver tongue', you had me thinkin...but then I just knew your clients were lying." 

I thanked the man for his feedback and bought him another orange Bud Light to go with the two in his hand. He quickly emptied one to make room for the extra and said I wasn't that bad after all. He told me not to worry because I still got paid and I quickly put that myth to bed to help him appreciate the generous orange Bud Light he had just received from the contingency fee lawyer that the jury found in favor of the other party. Which in laymen's terms means that lawyer (me in this case) didn't get paid or reimbursed for any time and/or costs in the case.

It gave me a fresh outlook at my cases and reminded me;

  1. We all are judged by our covers regardless of what the content may be;
  2. First impressions in trial are hard to shake; and
  3. You can't win them all (or over) but you can try the best case for your clients and still be called a liar by a drunk at the bar. 

Pedestrians Have the Right of Way in South Carolina

A pedestrian walking across the street to Anderson University was struck on Wednesday, September 17, 2014, according to WSPA and other media outlets. 

pedestrian, or any person on foot, has duties just like those driving motor vehicles to be responsible, however, sometimes the higher duty and responsibility remains with the driver of the motor vehicle to be more alert and observant.

South Carolina Drivers' Manual is where we all started and had to learn the "rules of the road" before being granted permission to get our license. After the introduction, the manual goes into "General Information", more specifically the subsection entitled, "Sharing the Road" states:

It is your responsibility as a driver to be on the lookout and to take every precaution possible to not injure a person on foot. If you see a vehicle, pedestrian or children near the road, you should slow down and be prepared to stop. (General Information p.45)

The South Carolina Code of Laws sets forth a few reminders for all of us drivers on the roadways as it pertains to pedestrians:

  1. SECTION 56-5-3230. Drivers to exercise due care.

    Notwithstanding other provisions of any local ordinance, every driver of a vehicle shallexercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and shall give an audible signal when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.

  2. SECTION 56-5-1520. General rules as to maximum speed limits; lower speeds may be required.

    (A) A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.

    (F) The driver of a vehicle shall drive, consistent with the requirements of subsection (A), at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, approaching a hillcrest, when traveling upon any narrow bridge, narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.

South Carolina case law follows in line with the before mentioned rules in stating:

  • One operating a motor vehicle on a public highway owes an urgent duty to keep a proper lookout and to keep the vehicle under proper control.  Yaun v. Baldridge, 134 S.E.2d 248, 251 (S.C.1964).
  • Negligence is established as a matter of law if the only inference is that either the driver did not look or did so in such a careless fashion as not to see what was in plain view. Williams v. Davis, 243 S.C. 524, 134 S.E.2d 760 (1964).

No one may truly know what happened during the incident. However, this is a time to remind all of us who get behind the wheel to just remain alert and vigilant to our surroundings.

 

Did You Know...Your Insurance Company Will Represent an Uninsured Driver Against You?

In an effort to help you the consumer be more aware of what really happens with your insurance premiums, I want to make sure you understand what happens when the real world collides with the insurance world. 

Hypothetical, or Example:

Suppose you are in South Carolina driving your beautiful wife and young child to church one morning when suddenly and without warning a drunk driver passes out at the wheel behind you and plows into your vehicle causing serious personal injuries. The drunk driver stumbles away from the scene but is later found at the convenient store nearby trying to buy beer. The police come do an investigation as you and your family are taken off by EMS to a nearby hospital and you eventually get to talk to the trooper that investigated the collision. The trooper indicates the driver was arrested for drunk driving (the driver's 4th), driving under suspension and disorderly conduct. He will probably be released from jail soon since no one died and since he doesn't really have any money, the fines will be a moot point. Drunk driver has no insurance on the vehicle because he could not afford it and lives in a van by the river (so no assets). 

Question:

1) Who pays for the medical bills, damaged property, permanent scarring, surgeries, and months on end of an altered lifestyle all because of this idiot?

2) Do you think the EMS transportation, medical services, car dealership, towing company, plastic surgeon, therapist, and rental company all will work for free out of the kindness of their hearts?

 

Answer:

1) In the state of South Carolina the law is that every driver must carry liability insurance and uninsured insurance to drive on the roadways in the state. That is it. Any additional coverage is up to you and what you are savvy enough to get with the right insurance company and agent.

So using the hypothetical above, the family injured would have to file a claim against their own automobile insurance company to try and be reimbursed and brought back to the position they were in before the drunk driver ever struck them.

Do you think that means your own insurance company will bend over backwards to help you OR do you think that means your own insurance company that you pay the premiums on will stand in front of the drunk driver and work against you to minimize what you receive?  Let me answer that for you...the later.

What if you have to file a law suit? Who represents the drunk? Well your insurance company provides an attorney that will look to be representing his interest and would actually sit at the drunk's table in front of the jury at a trial. 

That is why it is important to get a good insurance company focused on its members instead of a poor insurance company focused on their bottom line. In my opinion the top poor insurance companies are Allstate, Esurance, Safeco, and Direct General. It doesn't mean your insurance company is great if I didn't just list it, these are just the worst. 

2) No those services are not free and they will send you to collections if you do not pay them within 90 days regardless of who is at fault. They provide services and they want their money for those services. 

 

Stay tuned for more real life scenarios. To better educate yourself on insurance read these posts. 

 

"Full Coverage" Automobile Insurance

 

How Do Insurance Companies Make Money?

And Now You Do What They Told Ya...

"Why Did You Take That Case? It's Not Worth Your Time!"

A question recently posed to me by an insurance defense attorney that thinks certain cases should be beneath legal assistance because there is no real margin for a positive financial return. It reminded me of the real reason I became a lawyer and constantly reminds me of the every day people that need lawyers not solely focused on the bottom line. I realize this is a hard task because we are still running a business that has to pay overhead expenses, support ourselves and our families, and pay those law school loans! On top of that in South Carolina you are "assigned" cases that you are going to be spending time and money on for free anyway, which could easily fill that small philanthropic,or charitable void, in your cynical, cold heart.

Rise up, my cynical counterparts and cohorts in the business of assisting those in need when the tyrannical insurance company rears its ugly head. We must unite and bring forth our swords swiftly to sever its head before it begins to breathe fire and destroy all that is pure and just in a world bombarded with:

  • low balling adjusters reading from a computer screen;
  • experienced insurance adjusters being pushed to retire for college graduates that can read;
  • denials based purely on money saving tactics;
  • Allstate Insurance Company practices focused on trying to squeeze out the desire for attorneys to help;
  • property damage claims (See: South Carolina Property Arbitration:Your Weapon Against Insurance Adjusters) ;
  • minor property damage claims; and
  • anything quasi legal that comes out of the mouth of an adjuster. 

How about grab that bravado that made you a plaintiff's attorney and start saying, "F&*^ You, I want do what you tell me!" You can make the time for half a dozen of those cases a year. I know you "Million Dollar Advocates" can spare some time to feel reinvigorated and you young associates that do research all day can feel like real trial lawyers by taking on a Magistrate Court case or Property Arbitration. By pushing back on what the dragon is trying to force feed us we can eventually slay the large reptile and save the townspeople.