2018/11/21 - Is Your Insurance Company Watching You?
Insurance companies subsidize medical devices when they are prescribed for necessary medical treatment. However, it is important to realize that the digital world easily allows the transmission of data from these devices. Patients might expect that they would be asked for consent before personal information and behavior is transmitted to insurers via such a device, but that is not always the case.
This ProPublica article describes more than one case where patients using CPAP (Continuous Positive Airway Pressure) machines to help with sleep apnea were surprised to find that the machine was transmitting sleep data to their insurance companies. The insurer may use this sleep data to justify refusing to cover a new machine or upgraded parts. On one hand, insurance companies want to ensure that the CPAP machine is being used to the fullest extent, otherwise the treatment may not be effective. Insurers could then use imperfect patient compliance to justify denying coverage of the expense, as noted in this article from VeryWellHealth.com. However, many patients would want to be asked for consent before having their personal habits shared with an insurance company. Insurance companies tracking personal habits without consent or awareness may force patients to choose between their privacy and their wallet.
What Duty Does a City Owe to Keep Public Structures Safe?
Most people would not expect a public structure to be dangerous to the point of injuring a random passerby, but accidents can happen. When a person is suddenly hurt because of problems with a building or structure, who is to blame? Some accidents might be truly without fault, but others are preventable.
For example, consider the recent incident of the deadly traffic accident on Forest Park Parkway in St. Louis. The accident was caused when a woman who had lost control on an overpass of the Parkway struck a retaining wall crossing the bridge. A 1-ton section of the concrete wall came loose and fell onto a car passing below. Unfortunately, the woman driving on the road below the bridge was killed instantly when the concrete landed on her car.
The bridge in this incident (pictured above) was found “structurally deficient” in a recent Missouri Department of Transportation inspection report. The overall rating of the bridge was found to meet only the bare minimum standard necessary to keep functioning, and even then only with continuing monitoring and inspections.
What Steps Are Required to Sue a City For Damages?
While it is unclear if there was legal fault in the accident on the bridge, it is useful to understand a victim’s responsibilities in the case that he or she did decide to bring a lawsuit against a city. Under Missouri law, any city over 100,000 citizens requires that an injured person notify the mayor within 90 days of an incident. This notice also has a series of requirements, such as naming the place and time of the injury and the type of damage or injury that occurred.
To further complicate any recovery regarding an accident involving an unsafe roadway or bridge, in many cases the city has broad sovereign immunity—or a protection from being sued for harms. For example, the victim would need to be able to show that the city knew about the dangerous condition of the structure. Someone harmed by this danger would also need to prove that the type of harm or injury that occurred was reasonably foreseeable (or probable), given the dangerous condition. Given that the city’s spokesperson and police have called this bridge incident a “freak accident,” it seems likely that the city spokesperson felt it was not a reasonable thing to expect to happen on this bridge.
While complex, cases like these can be won with good legal representation. Gallagher Davis successfully represented a client against the Missouri Highway Transportation Commission where dangerous road conditions lead to a terrible accident. In 2017, Tim Gallagher won a case for his client who was severely injured in in accident where a snow plow had created a ramp-like effect on a high overpass curve, which sent his car sailing onto the ground below. Although this case also involved difficult statutory issues like sovereign immunity, Mr. Gallagher was able to hold the government accountable for the dangerous conditions through skill and perseverance.
2018/03/19 - Headed to Emergency? Consult a Lawyer.
Health insurance disputes are nothing new, but recent moves by Anthem Blue Cross Blue Shield (BCBS) have been causing financial worries for their customers and concern amongst legal professionals like the attorneys at Gallagher Davis.
In the fall of 2017, Anthem moved to withdraw coverage options from the Health.gov (Obamacare) marketplace in several states, including major urban areas in St. Louis and Kansas City. This left the insurer with fewer high-ticket reimbursement responsibilities in the largest Missouri cities, while the company simultaneously realized a $3.84 billion profit overall in 2017. In fact, Anthem received $1.1 billion in tax incentives from the federal government last year and at the same time substantially cut back on offered insurance services.
In addition to these reductions in plan offerings, Anthem has been scaling back plan coverage in troubling ways. In the most commonly criticized change to its insurance coverage, Anthem has been denying Emergency Department (ED) bills in Missouri, Kentucky & Georgia when the company determines that treatment was not enough of an “emergency” to qualify for coverage. For example, a Kentucky woman with severe lower abdominal pain and fever went to the ED, fearing appendicitis. She was diagnosed with ovarian cysts and told to seek gynecological care. She was billed over $12,500, which Anthem initially declined because ovarian cysts did not qualify for emergency treatment. After two appeals, Anthem eventually approved the payment.
Once hospitals saw these payment denials for emergency treatment, they pushed back that these post-treatment coverage denials were dangerous, because people would delay seeking treatment or not go to hospitals if they feared a high bill. At this point, Anthem revised its policy to exempt certain types of treatment from this added scrutiny, such as in cases where the patient is under 15 years old, was directed to the ED by a doctor, or does not live within 15 miles of an urgent care clinic.
Another questionable Anthem cost-cutting tactic has been longer term. Anthem has refused in-network reimbursement levels of payment for some air-evacuation emergency helicopter transportation. A recent case out of Missouri, where a boy fractured his skull after a fall during a camping trip, ended up with a local family owing over $32,000 for an emergency airlift even though they were covered by Anthem. The air evacuation company, Air Evac Lifeteam, said that other state healthcare companies provided a reasonable reimbursement level, despite considering the helicopter service “out of network,” but not Anthem.
Cases like this make it difficult for insured people to know what to do when they are in need of emergency treatment, and can leave them stuck with tremendous medical bills after a traumatic injury. This is where Gallagher Davis comes in to help work with insurers to get the coverage that their customers are due. The last thing people in a medical crisis need is to try to determine whether their illness or injury is emergency department worthy or to refuse a much-needed airlift because they are concerned with receiving an outrageous bill. Patients’ rights advocates like the attorneys at Gallagher Davis can help cut through an insurance company’s red tape to force companies like Anthem to make the reasonable payments they owe.
2017/12/29 - 2017 Year in Review
For years, colleagues had warned Matt Davis not to take on cases challenging health care benefits denials dealing with the Federal Employees Health Benefits Act (FEHBA). FEHBA is the federal statute that governs health benefits provided to federal employees and their families, but the standard of review is very favorable to the government and recovery is quite limited. However some cases are worth the challenge. After two years of litigation and two judgments, Matt secured decisive justice for some very deserving clients.
Holding the government accountable was an early theme of 2017. The Missouri Highway Transportation Commission (MHTC) is responsible for the design and maintenance of Missouri’s highways and bridges. On March 24, 2013 the St. Louis area experienced a record breaking 12.4 inches of snowfall, but a day later temperatures quickly rose into the 50’s causing snow to melt during the day and refreeze at night. Road crews need to take this refreezing into account when plowing roads, particularly on bridges and overpasses. When snow piles are left on the sides of bridges and overpasses after plowing it can create a dangerous “ramp effect,” where refrozen melted snow forms a slick embankment that causes vehicles to launch over the side of the bridge. It is a dangerous, yet preventable, condition. But when road crew shifts are rushed or are improperly trained, plowing the roads can actually make them more dangerous rather than more safe. In a lawsuit against MHTC that resolved this year, Tim Gallagher alleged that his client was the victim of a ramp effect created by MHTC after the Palm Sunday Snowstorm in March, 2013 in St. Charles. Tim’s client was driving on a St. Charles overpass on Highway 94 when his car launched over a frozen snow embankment, over the guardrail and landed on Highway 364 below. Cases against the MHTC are incredibly complicated, involving the doctrines of sovereign immunity and statutory caps on damages. However, with skill and perseverance Tim was able to help our seriously injured client and hold the government accountable, which will hopefully lead to safer roadways for everyone.
Gallagher Davis has also helped hold private insurers accountable on behalf of their clients. Insurance companies often rely on doctors-for-hire to review medical records and write reports finding that claimants are not sick, not injured or are lying or exaggerating their symptoms. Insurers pay their own doctors to review client’s claims even after the plan member’s client’s treating physician has personally taken a history and physical, interpreted diagnostic tests and prescribed treatment. In ERISA cases, discovery into these dubious tactics is often not allowed, making it difficult to overcome this strategy. For every treating physician who believes her patient, an insurance company can hire doctors to cherry pick records and diagnoses to say that the patient and doctor are lying. In July 2017, Matt Davis scored an important victory for long term disability claimants when he convinced a federal judge that one long term disability provider’s tactics–using these hired guns to deny claims–was a “procedural irregularity” that justified further discovery. The order has already been cited by judges in other cases. It was a small triumph that will hopefully help to level the playing field for disabled people in the Eastern District of Missouri.
In November 2016, Tim Gallagher won a jury verdict in an auto case in St. Louis County. It was technically a “win” for our client, but for Tim there was no cause to celebrate. The defense had been able to introduce evidence that Tim believed should have been excluded which convinced the jury that the client’s damages were tied to the amount of money that his health insurance paid for his medical treatment. Tim’s client was not seeking reimbursement of the medical bills, so this comparison substantially reduced the amount of the verdict. Tim appealed and a higher court of three judges agreed and sent the case back for a new trial. The case is presently pending before the Missouri Supreme Court on an Application to Transfer. The final decision will have far reaching implications beyond just this one case and should help clarify and protect the rights of people in the State of Missouri. Tim will be continuing the ongoing case into 2018.
2017/12/02 - Tim Gallagher Wins New Trial for Injured Client
In 2014, Tim Gallagher filed suit against a negligent driver on behalf of his client who was severely injured when the driver rear-ended his car. With increasing neck and back pain that restricted his movement, career and normal daily life, the client needed compensation for medial costs as well as pain and suffering. Before trial, Mr. Gallagher amended the claim to remove the request for medical damages and instead seek compensation only for pain and suffering, along with possible future medial expenses.
Although Mr. Gallagher argued that the evidence of medical costs already paid by the victim’s insurance should not be legally admissible, the trial court found that they were allowed into evidence so long as the defense attorney agreed that those medical costs were due to the negligence of the defendant driver. After hearing this evidence on medical costs, the jury found for the plaintiff (victim) of the car accident, but limited its award to compensation for medical expenses.
On appeal, Mr. Gallagher asserted that the trial court should not have allowed these medical costs and insurance payouts into evidence unless the plaintiff had first introduced them through his pleading. Since the victim did not assert those medial costs in his pleading for trial, Mr. Gallagher argued that Missouri law prohibits this evidence from being introduced during trial proceedings. (See International Div., Inc. v. DeWitt & Associates, 425 SW 3d. 225, Mo. App. SD 2014.) Respondents claimed that Mo Rev. Statute 490.715.5 allowed the medical claims into the trial by nature of them being a consequence of the negligence of the defendant. However, the Missouri Court of Appeals for the Eastern District agreed with Mr. Gallagher that the medical costs should not have been introduced into the trial record if the plaintiff did not bring any of this information into pleadings.
In summary, Mr. Gallagher won a new trial for his client wherein his damages can be assessed on the basis of his pain and anguish and future medical needs, rather than limited on the basis of his past medical claims. In the broader context, this Court of Appeals ruling also protects plaintiffs’ rights to bring the evidence most appropriate to their claims into their pleadings, without fear that defense attorneys can color the jury’s assessment of damages based on a more narrow presentation of the harm.
2017/07/27 - Matt Davis Presents Legal Ethics CLE
Matt Davis has provided Continuing Legal Education (CLE) seminars for colleagues in Missouri and Illinois several times over the years. Recently, in June, Mr. Davis presented two sessions at the National Business Institute CLE seminar on Legal Ethics for Everyday Practice facing Missouri and Illinois attorneys. Among the ethical concerns he covered, he educated attorneys on the ethics surrounding properly storing former and current client information and he spoke about how to safeguard emails. Mr. Davis also presented on the ethical issues related to recognizing and preventing conflicts of interest and unintended attorney-client relationships. Another ethics concern Matt discussed during the CLE presentation was attorney advertising and communications.
The Continuing Legal Education programs Mr. Davis presented will help fellow attorneys meet these evolving ethical challenges knowingly and with care. With this background knowledge, you can count on Matt to have legal ethics issues top-of-mind in his work with legal clients and sensitive case issues. The CLE presentations he has given demonstrate that Mr. Davis is current and competent with his ethical responsibilities and that he appreciates the importance of ethics in the legal profession.
Gallagher Davis proudly represents clients who have been denied their rightful coverage under insurance and health care plans. This includes vigorously protecting clients’ rights to have mental health issues covered in a manner equivalent to how health care plans cover physical health. Several laws require this coverage including the Mental Health Parity and Addiction Act of 2008. Unfortunately, despite these protections in the law, health insurers often deny mental heath care coverage, in particular residential treatment. This was the situation in a case that Gallagher Davis recently won in federal court. Read more…
Ever wonder why we see and read about so many incidents of horrific, yet preventable, car accidents in the news lately? One reason may well be the increase in distracted driving. Statistics show that out of all 15-19 year olds involved in fatal car accidents, 10% were classified as distracted drivers at the time of the crash, according to the US Department of Transportation (US DOT). In fact, in July 2016, the National Highway Safety Administration published a report citing car crashes as the number 1 cause of death for 16-24 year olds for the years 2012-2014. While fatal car accidents have been removed from the top ten causes of death in the United States in 2014, car accidents remain the 13th leading cause of death. Read more…
On May 13, 2015, lawmakers passed Missouri Senate Bill 145. The bill requires health benefit plans written in Missouri, as well as plans written outside of Missouri that cover Missouri residents, to cover the diagnosis and treatment of eating disorders. Read more…
On May 19, 2015, Governor Jay Nixon announced that Missouri had reached a $4.5 million settlement agreement with Aetna. The insurance company had failed to provide coverage for the diagnosis and treatment of autism in violation of a 2010 law mandating that insurance companies operating in Missouri provide such coverage. Read more…