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Medicare madness for elderly tort victims

We wrote about some of the pitfalls of the Medicare bureaucracy and the impact on personal injury cases back in July. You can see that piece here. Just a few months later, the Medicare giants are roaring again with new tactics and legal strategies that continue to prevent elderly tort victims from getting justice.

In a column in Mother Jones (10/8), Stephanie Mencimer wrote, “In recent years, Congress has pushed Medicare to aggressively pursue debts from injured elderly people who have won compensation through lawsuits or liability insurance.” For people “on the receiving end of the collections process-mostly elderly car accident victims…it can be a traumatic ordeal.”

After “forcing plaintiffs’ lawyers to serve as Medicare’s debt collectors failed to produce the desired results, Congress passed new debt-collection measures as part of the 2007 SCHIP reauthorization. Starting next year, insurance companies must report any settlements or judgments involving Medicare beneficiaries to CMS. If a Medicare beneficiary fails to reimburse the agency for health care costs it paid, the agency can punish the insurance company with double damages.”

But “the prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare’s bureaucracy, has kept some elderly folks from receiving money that’s rightfully owed them.”

You can read the full article from Mother Jones by clicking here.

As we said previously, while it may seem fair for the government to seek recovery from cases, a more orderly procedure needs to be developed by the government for speedy resolution of claims and greater communication with lawyers for claimants. Until this orderly process put in place, elderly clients may go without legal representation, and may have to forgo seeking redress for their injuries altogether. That will result in an inability to seek justice on behalf of elderly clients, and will leave the Medicare system unreimbursed for costs paid. Let’s hope that any efforts at health care reform include revisions to these bureaucratic nightmares.

Free on-line law library launched

Where do you turn when you have a legal question, want to research it on your own, want to be able to do it from your computer, and want it for free? Well, thanks to the folks at Fastcase, you now can turn to the Public Library of Law (PLoL).

Fastcase created the PLoL to make it easy to find the law online. PLoL is claimed to be the largest free law library in the world and is assembled from law sources available for free scattered across many different sites. The PLoL site contains the following legal sources:

  • Cases from the U.S. Supreme Court and Courts of Appeals
  • Cases from all 50 states back to 1997
  • Federal statutory law and codes from all 50 states
  • Regulations, court rules, constitutions, and more!

It also contains a user guide and resources to get you started.

While PLoL is a great starting place to find law on the web, users should be cautious, as it certainly does not replace legal advice and research from a seasoned attorney.

Bystander claims for fire witnesses allowed

A U.S. district court in Texas held that a girl who witnessed a fire that killed her sisters could assert a bystander emotional distress claim. She did not see the event that triggered the fire, but the court determined it was sufficient that she witnessed the fire itself.

While 9-year-old Morgan Thornton was at school, a halogen floor lamp in her twin sisters’ room allegedly fell and started a fire. She arrived to discover her home in flames and learned her sisters had been trapped inside and died in the fire.

In her family’s lawsuit against the manufacturer of the lamp, Thornton v. Home Depot, U.S.A., Inc., Thornton put forward a bystander emotional distress claim. Defendant moved for partial summary judgment, contending the claim was barred under Texas law.

The court noted that to recover for bystander emotional distress under Texas law, a plaintiff must show that he or she suffered shock as a result of a direct emotional impact caused by “a sensory and contemporaneous observance of the incident,” as opposed to learning about it secondhand. In cases where bystander claims were denied, the courts did so on the ground that plaintiffs arrived at the scenes of automobile accidents after they occurred, had not seen or heard the crashes, and therefore had not had a sensory and contemporaneous observance of the incident.

The court rejected the manufacturer’s argument that Thornton did not have a sensory and contemporaneous observance of the incident, citing bystander fire cases holding that the bystander must observe only the fire, which is the actual injury-producing event, and not the cause of the fire.

Because Thornton here witnessed the fire consuming her home and was aware that her sisters were inside, the court concluded that she had a sensory and contemporaneous observance of the incident and was entitled to proceed with her claim.

To read a copy of the decision, click here.

FBI liable for murder by informants

A federal judge found that the FBI’s mishandling of longtime informants James “Whitey” Bulger and Stephen “The Rifleman” Flemmi caused the 1984 murder of Quincy fisherman John McIntyre and ordered the government to pay more than $3 million to McIntyre’s mother and brother. US District Judge Reginald C. Lindsay, who presided over an 18-day bench trial in June, ruled that former FBI agent John J. Connolly Jr. warned Bulger and Flemmi that McIntyre was cooperating against them, knowing the tip would likely lead to McIntyre’s murder.

McIntyre, 32, was lured to a South Boston home, chained to a chair, grilled for hours, choked, and shot to death, according to Flemmi. His remains weren’t discovered until January 2000.

In a 110-page decision, Lindsay found that the FBI failed to properly supervise Connolly and failed to investigate numerous allegations that Bulger and Flemmi were involved in drug trafficking, murder, and other crimes over decades.

The judge ordered the government to pay $3 million to McIntyre’s mother for the conscious suffering he endured before his brutal slaying, $100,000 for the loss of her son’s company, and $1,876 for funeral and burial costs.

The court decision offers a unique look into the Massachusetts Wrongful Death statute and compensation laws in general. As the court noted, the purpose of the statute is to compensate survivors for the loss of the decedent’s life. It also allows recovery for the loss to the person entitled to recover of the services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent (otherwise known as “loss of consortium” damages). The court grappled with the difficulty in quantifying these consortium type damages:

Such damages, however, are notoriously difficult to quantify. Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). There is, after all, no scientific formula or measuring device that can be applied to place an exact dollar value on noneconomic damages . . . . Muniz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004). Nevertheless, the amount awarded must be the product of a process of rational appraisal and based upon the evidence adduced at trial. Ruiz v. González Caraballo, 929 F.2d 31, 35 (1st Cir. 1991).

The court also addressed compensation for the decedent’s conscious suffering, another element of recovery under the death statute. Here the court had to consider and quantify rather gruesome evidence about how McIntyre suffered in the time just before he died. The analysis provided by the court highlights the difficulties juries face daily in awarding damages for human suffering:

The evidence of both McIntyre’s consciousness and his suffering is ample. For a period of about one to two minutes, Bulger, an accomplished murderer and a pretty powerful person, as Flemmi put it, tried to strangle McIntyre. In the abstract, one to two minutes is not a long time. But consider the annoyance of some motorists at an overlong traffic light, when all they have to do is wait for a period of seconds. McIntyre was not simply waiting; he was being murdered. He was handcuffed, his body encircled with chains. The rope around his neck – the first instrument applied to the task of accomplishing the murder – undoubtedly caused extreme pain and constricted his breathing. Then there was the pain of the handcuffs, which, by that point, had bound him for five or six hours. Applying common sense and logic to the facts of record, I find that after the attempted strangulation began, McIntyre likely was in extreme pain throughout his body. It is reasonable to infer, and I do infer, that when McIntyre did not die right away, Bulger increased the pressure on the rope, thereby increasing the agony experienced by McIntyre. McIntyre vomited and audibly gasped for air, making gagging and gurgling sounds. And McIntyre suffered more than physical pain. If, as Flemmi testified, McIntyre suffered mental anguish even before any attempt was made to kill him, the anguish he experienced as the attempt began and progressed must have intensified dramatically. He was terrified; he knew his tormentors intended, and would likely succeed in accomplishing, his murder. He had been an informant, and he would pay the price typically paid by revealed informants. He knew that there would be no time for goodbyes to his loved ones or for putting his affairs in order; for he would not leave that basement alive. It is difficult to imagine a more distressing set of circumstances – physically and mentally – than those encountered by McIntyre during the minutes preceding his death in the basement of 799 East Third Street on November 30, 1984. It was, as Emily McIntyre said, torture. See Emily McIntyre June 16, 2006 Tr. at 79. I infer that, for McIntyre, the one to two minutes of physical and mental pain were an eternity. It is not surprising, therefore, that when Bulger offered him the opportunity of a swifter death by a gunshot to the head, McIntyre pleaded for that gruesome, but quick relief from his suffering. It is his “yes, please” that is the most certain evidence of his conscious suffering.

On this evidence, the court found that a reasonable award was $3 million.

To view the entire decision, click here.