Arizona Personal Injury and Insurance Bad Faith Blog

Product Liability May Be Altered in Pharmaceutical Drug Cases

ap@azfirm.com (Angelo Patane) — Mon, 13 Oct 2008 15:37:19 -0700

The Supreme Court is currently reviewing a case called Wyeth vs. Levine to determine whether or not individuals can sue for drugs that cause them serious side effects. The Court has agreed to decide whether a musician who lost her arm after receiving an anti-nausea drug via an off-label injection method may recover under Vermont tort law despite FDA approval of the drug's label. Individuals have commonly brought claims in the past, claiming that the drug companies failed to warn them of the possible side effects, and that the drugs themselves have design defects.

The case, Wyeth v. Levine, No. 06-1249, arose when Diana Levine went to the hospital suffering from nausea associated with a migraine headache. Physicians initially gave her Phenergan, a drug manufactured by Wyeth, by injecting it into her muscles. When her nausea persisted, they gave her the drug using the so-called "IV push" method, involving injection of the drug into her vein. They bypassed administration via an IV drip. The drug made contact with her arteries, leading to gangrene and forcing doctors to amputate her arm.

However, the Wyeth v. Levine case could limit liability against drug the drug manufacturers in these types of cases. The argument for the drug companies is that drugs are preempted because experts at the FDA sanctioned the product and its label for safety. Because federal law supersedes state law, the ruling would affect lawsuits filed in all 50 states.

Of course, the Plaintiff's argument is just the opposite, in that not all of the side effects people are experiencing were disclosed in the warning. Furthermore, a decision to limit the liability of pharmeceutical companies could leave individuals with claims against the corporate giants without any recourse.

California Rail Crash That Killed 26 May Test $200 Million Damage Cap

ap@azfirm.com (Angelo Patane) — Thu, 18 Sep 2008 10:36:51 -0700

With 26 dead and over 130 injured, the law capping cumulative passenger claims from a single railroad accident at $200 million may come into play. The $200 million cap includes punitive damages as well, thus any damages to punish the train company for gross negligent or evil conduct is limited as well.

On September 12, a commuter train collided with a freight train due to operator error. Apparently, the conductor of the commuter train failed to obey a signal to stop and let the freight train pass- an error that led to the head-on collision. There are also reports that the engineer was text messaging right before the accident, calling the engineer's attention into question. California already has a law that bans cell phones while driving, but currently has no text messaging law into effect, though they are planning on implementing one as early as January 1st. It seems unclear whether these laws would apply to trains as a vehicle.

The discussion on damage caps is furthered by an article written by Angela Greiling Keane, and can be found at http://www.bloomberg.com/apps/news?pid=20601103&sid=atdVFHzijRhk&refer=us.

Though train accidents and lawsuits are not uncommon, this may be the largest claim on record to date. As the deadliest train accident since 1993, we can only hope that the families of the victims are compensated appropriately for their losses, though no monetary gain will ever replaced the loved ones lost.

Motorcycle Deaths Down In Arizona

ap@azfirm.com (Angelo Patane) — Mon, 23 Jun 2008 11:12:53 -0700

On Sunday June 22, 2008 the Scottsdale Tribune reported on a recent study of motorcycle deaths in Arizona. According to the Tribune, "in 2006, the most recent year for which statistics are available, 4,810 motorcyclists and their passengers were killed in crashes across America." In Arizona, 142 people died in 2006.

However, in 2007 Arizona motorcycle deaths fell to 135. The Arizona Governor's Office of Highway Safety is pleased that the numbers in Arizona are going down because the reduction occurs in the midst of an increase in the popularity of motorcycles in Arizona, meaning the number of deaths would be expected to increase. From 2004 to 2006 motorcycle registrations jumped 41% in Arizona to more than 114,000. The Tribune indicates that the Office of Highway Safety believes the reduction in fatalities may be related to the advertising campaign called "Ride Safe, Drive Aware" which began in early 2007.

Suzuki Recalls Motorcycles Due To Accident Potential

ap@azfirm.com (Angelo Patane) — Fri, 20 Jun 2008 18:21:02 -0700

The U.S. Consumer Product Safety Commission has announced that American Suzuki is recalling over 9,000 MY 2008 GSX1300R motorcycles. Improper routing of the ignition switch wiring harness can cause a bent portion of the wiring harness to flex rather than slide when the handlebar is moved from right to left or left to right. Repeated side-to-side movement of the handlebar, and flexing of the bent portion wiring harness, can eventually cause the ignition switch lead wires to become cut or broken. This can result in intermittent or complete loss of electrical power, which can result in loss of lighting and/or stalling of the engine, increasing the risk of a crash.

Insurance Complaints In Arizona On The Rise

ap@azfirm.com (Angelo Patane) — Fri, 20 Jun 2008 17:50:08 -0700

According to a recent press release from the Arizona Department of Insurance, in 2007 the Department responded to 5,020 complaints and assisted thousands of Arizona consumers to recover $7,483,107 in claim settlements and refunds. These figures increased from 2006 when the department received 4,393 complaints and assisted in recovering $3,607,496 for consumers.

The Department of Insurance reports that the majority of complaints involve delay or denial in paying automobile, health or homeowners insurance claims.

Golf Cart Accidents Increase

ap@azfirm.com (Angelo Patane) — Fri, 20 Jun 2008 17:32:19 -0700

According to consumeraffairs.com, new research from the University of Alabama at Birmingham Center for Injury Sciences indicates injuries associated with the use of golf carts may be under-appreciated, suggesting the need for the implementation of new safety measures.

Mark Huffington of consumeraffairs.com recently reported that according to the June issue of the Journal of Trauma: Injury, Infection and Critical Care, UAB researchers found that there were more than 48,255 golf-cart related injuries between 2002 and 2005, with the highest injury rates observed in males 10-19 years old and those over 80.

Gerald McGwin, Ph.D., associate director for research at the Center for Injury Sciences says fractures and head trauma are among the most common injuries associated with golf cart-related accidents. Due to the high risk of rollover and ejection, he recommends the use of helmets and seatbelts, particularly if the golf cart is driven on public roads, as is common in Arizona.

Questions About Rental Car Child Seat Safety

ap@azfirm.com (Angelo Patane) — Fri, 20 Jun 2008 17:22:10 -0700

Consumeraffairs.com recently wrote:

Parents traveling with young children face more challenges than they used to. When they rent a car, for example, they also have to rent a child safety seat. They depend on the car rental agency to offer a safe and reliable seat, but shouldn't just assume they'll get one, as consumer Debbie Dubrow discovered.

Dubrow, her husband and two small children flew from Seattle to San Diego in December, renting a car and two child safety seats from Advantage Rent A Car. The seats, she says, had obvious problems.

"Some seats were obviously missing parts. Some were obviously very old," she told ConsumerAffairs.com. "We installed two of the better looking seats thinking that they were okay only to find that they were not working.

"One was missing the top part of the harness that would secure the child in a crash, the other had a seatbelt that wouldn't tighten enough to secure our child. It took us quite some time to find working seats to install," she said. "The seats were also filthy, with huge black marks on some and dirt or crumbs on others."

Dubrow says that when she complained to the rental car manager, he offered to refund the money for the seats, but otherwise offered no help. It wasn't just a matter of poor customer service, she says, it was a violation of the law.

"In California, there are clear laws regarding child safety seat rental. These old, non-working seats were not only unsafe, they were also against the law," Dubrow said.

Media attention

Dubrow didn't take the experience sitting down. She blogged about it, gaining the attention of a TV station in San Diego, which reported on her experience.

As a result, she says, Advantage performed a company-wide inspection of their car seats, destroying any that did not meet the legal guidelines. The company has also instituted a company-wide Child Safety Seat policy to ensure that they rent only safe, clean car seats in the future.

"The problems were really obvious," Dubrow said. "I don't have any knowledge about car seats beyond what a well-informed parent would have after purchasing their own seats and using them daily. In my opinion, it is something that Advantage employees should have recognized."

The take-away lesson for parents, she says, is to never assume that a car seat is safe, simply because a company is renting it.

"If you see a company putting people at risk, take action to make it better," Dubrow said.

What to do

Dubrow says parents need to know how to check a rental for safety. Here's what to look for:

• Inspect each seat thoroughly for any evidence of cracking, twisting, worn harness webbing or broken buckles.

• Verify that seatbelts are threaded through the proper channels.

• Once you have latched the buckles, pull hard to make sure that they do not detach.

• Find the "birth date" label on the side or back of the seat, and don't use a seat more than 5 years old.

• Get a copy of the car seat manual

"I was shocked at how many parents responded saying 'I've seen that before.' I'm hopeful that my story will inspire others to take action," Dubrow said.

Six Million Automobile Tire Stems Recalled

ap@azfirm.com (Angelo Patane) — Fri, 13 Jun 2008 17:01:47 -0700

CNN is reporting that an Ohio distributor is recalling about six million Chinese-made tire valve stems after discovering that some of them were improperly made and may increase the risk of accidents. The CNN story reports:

Tech International, the part's Johnstown, Ohio-based distributor, estimates that just 8,600 of roughly 6 million of those valves are defective. The valve is a replacement snap-in tire valve -- Model No. TR413 -- manufactured between July and November 2006.

It was imported by Tech International from manufacturer Shanghai Baolong Industries Co. in Shanghai, China, according to the National Highway Traffic Safety Administration. According to the recall, the rubber part of the valve may crack after being in use for about six months, causing a gradual loss of tire pressure.

Continuing to drive on under-inflated tires can cause them to burst, possibly leading to crashes. Tech International told the NHTSA that the company doesn't have records of the final purchasers of the valve stems.

According to the company, the defect was identified after "a small number" of the valves were reported by customers and one distributor to have failed. The samples were shipped to China, and, in March, Baolong concluded that some valves could be defective.

"The cause of the defect is likely improper mixing of the rubber compound in the manufacturer's facility," Tech International wrote in a letter to the transportation safety authority

Insurance Company Criticized for Denying Health Insurance Claims

ap@azfirm.com (Angelo Patane) — Fri, 13 Jun 2008 14:50:28 -0700

Ken Alltucker of the Arizona Republic has reported that an insurance-industry practice of retroactively dismissing individual health policies and leaving some people with costly medical bills has come under fire in Arizona and other states. His article states:

The practice is generating many complaints to government regulators and some lawsuits claiming insurers have improperly dropped coverage.

Insurance companies say such cancellations are a rare but necessary tool to stop consumer fraud and lower costs for all individual policyholders.

Yet, consumers and lawyers who have challenged insurance cancellations say there are many examples of insurers targeting patients who have been diagnosed with chronic or life-threatening diseases that require costly medical care.

Yet, consumers and lawyers who have challenged insurance cancellations say there are many examples of insurers targeting patients who have been diagnosed with chronic or life-threatening diseases that require costly medical care.

Several consumers have lodged complaints with the Arizona Department of Insurance about these policy cancellations, which are called "rescissions" by the insurance industry.

The practice has been scrutinized from California to Connecticut with some states passing tough measures or pursuing regulatory actions and assessing fines to restrict these retroactive health-policy voids.

In Arizona, two women say in separate lawsuits that Health Net of Arizona dropped their policies after they were diagnosed with cancer and that the insurer demanded that their doctors, labs and other medical providers refund payments.

Health Net settled one of the two suits, and the insurer expects to spend millions on legal costs for similar cases in Arizona and California. A Phoenix man sued Golden Rule Insurance Co. after his policy was dropped and the insurer refused to cover the costs to remove a brain tumor and other medical procedures.

The insurance industry recognizes how such cancellations are seen as controversial and has recommended changes that it says will be fair for consumers and insurers alike.

"We want consumers to have an enhanced peace of mind," said Mohit Ghose, a spokesman for Washington, D.C.-based America's Health Insurance Plans, a national association representing nearly 1,300 companies. "It is very clear to our members that rescissions are not necessarily the way to go. We want to make sure people are covered. You also have to have mechanisms in place to prevent fraud."

Under Arizona law, insurance companies are allowed to rescind an individual's policy without notifying state insurance regulators. Such rescissions can occur even after an insurer approves a consumer's application, authorizes medical treatment and makes payments to doctors, hospitals or other medical providers.

Insurance companies say such policy cancellations are an important way to combat fraud because consumers may fail to disclose pre-existing conditions or misrepresent important facts about their medical histories.

They say the practice of investigating a person's medical history and ferreting out such information is necessary to reduce costs and make premiums less expensive for the estimated 293,000 Arizonans who do not have access to employer or government insurance policies and instead have purchased individual health policies.

"The goal is to try to put a stop to this practice because it is hurting a lot of people," said William M. Shernoff, a Claremont, Calif., attorney who has filed dozens of lawsuits challenging such policy cancellations by insurers. "It is not only a financial burden on the people. When their coverage is pulled, they can't get treatment."

Health Net Scrutiny

Health Net faces perhaps the most scrutiny among large insurers for its policy cancellations.

In February, a California arbitration judge ordered the Woodland Hills, Calif.-based company to pay more than $9 million to a cosmetologist whose policy was eliminated while she received chemotherapy for breast cancer. Health Net claims the woman didn't reveal a heart murmur and inaccurately described her weight on a policy application.

The California arbitration case prompted Health Net to announce that it would no longer rescind policies without a third-party review.

But the company still faces many legal challenges in California, Arizona and elsewhere.

Last month, Health Net said it paid $43.2 million for legal costs and lawsuit settlements stemming, in part, from rescission practices in Arizona and California. The managed-care company also disclosed it wrote down an additional $35.8 million on its corporate books, in part because of costs related to these policy cancellations.

A Health Net spokeswoman declined to say how much the company expects to spend on Arizona cases or settlements.

"We're not breaking out the percentage between the two states," said Amy Sheyer, Health Net's director of communications. "These are legal issues, so we do not have any comment."

Court records show Health Net has been sued twice in Maricopa County over the past three years.

Phoenix resident Linda Iorio sued Health Net in 2006 after the insurer dropped her coverage while she was receiving treatment for breast cancer. The two sides settled the lawsuit in March. Neither Health Net nor the attorney representing Iorio would reveal payment terms.

Health Net had canceled Iorio's policy just as she was receiving treatment, claiming she didn't disclose to the insurer that she felt masses in her breasts before signing the application.

Depositions show Health Net never called Iorio before ending the policy. And Health Net did not call her doctor, either. A Health Net senior rescission analyst came across medical records that the insurer believed warranted the policy decision.

A second lawsuit is pending. Tanya Serrano, 33, was diagnosed with ovarian cancer and underwent an aggressive series of chemotherapy treatments to wipe out the cancer.

Right before she had a hysterectomy scheduled, she received a letter from Health Net informing her that her policy was canceled because she failed to disclose her full medical history.

At the time, Serrano felt weak and listless from her cancer treatments and had dropped significant weight. "I cried when they told me I had cancer. I cried when they told me I needed a hysterectomy. I sobbed when I got the letter from Health Net," Serrano said. "I was counting on them to carry me through the hardest thing I would ever go through. They let me down."

Complaints Received

Arizona insurance regulators are aware of the lawsuits and have received complaints about the practice, but they don't believe any one company has shown a pattern of wrongdoing.

It's unknown how many Arizona insurance policies are rescinded each year. Arizona law does not require insurance companies to report the number of policies dropped, according to Gerrie Marks, the agency's deputy director.

More than one dozen Arizona consumers have lodged rescission complaints with the agency over the past three years. Of the cases that the Arizona Department of Insurance has reviewed over that period, the agency has sided with the insurance company in all but one case.

"We've had a handful of complaints," Marks said. "None of them shows any kind of serious problems or concerns."

Consumer complaints are just one way that the state agency finds out about rescissions.

Insurance companies have reported dozens of fraud cases that led to rescissions. Marks said insurers may report such fraud, for example, if a consumer fails to disclose medical history or omits critical medical information. Health Net reports all its Arizona rescissions to the state as fraud cases.

Marks said Health Net has reported dozens of such fraud cases, but she said she could not immediately say what percentage of those fraud cases were actual rescissions. The agency also has fielded more than 100 consumer complaints about policy cancellations over the past three years. Some of those may have been rescissions, too.

Representatives of Blue Cross Blue Shield of Arizona, which provides insurance to about 1.1 million people, attempt to work with its customers before dropping coverage. The insurer rescinded just four policies last year, a spokesman said.

When Blue Cross Blue Shield discovers a person may not have provided all the necessary medical information, the company allows policyholders to explain the discrepancy.

"We would try to clarify that with the member before the policy is rescinded," said Carlos DellaMaddalena, a Blue Cross Blue Shield spokesman.

Even though Arizona regulators don't believe insurers are dealing in bad faith regarding rescissions, regulators in both California and New Mexico have pursued more aggressive policies to address the practice.

The California agency that regulates managed-care companies has launched an investigation of the rescission practices of the five largest insurers.

The California Department of Managed Health Care this month reached a settlement with Kaiser Permanente to reinstate coverage to 1,000 rescinded policyholders. The agency also expects to soon announce a settlement with Health Net.

The agency has received about 200 formal rescission complaints from consumers. That likely represents a small percentage of insurance consumers whose policies have been dropped, a California Department of Managed Health care spokeswoman said.

Also, New Mexico Gov. Bill Richardson recently signed a bill that limits insurance companies' ability to rescind a policy. Insurers must show a consumer has been "willfully fraudulent" before rescinding a policy. Before the change, insurers could merely point to a mistake or omission on an application before dropping a policy.

The New Mexico law raises the burden of proof for the insurer.

Even with states on each side of Arizona tackling the rescission issue, Marks said, there are no efforts in Arizona to strengthen existing laws or conduct investigations of existing companies.

The relatively small number of consumer complaints "indicates it really isn't an issue in Arizona," Marks said. "It doesn't raise any red flags."

Reminders of Battle

Despite the ordeal and emotional toll she experienced, Serrano said she feels better today.
"I'm fine healthwise," Serrano said. "I am fortunate the cancer was caught early."

Serrano and her husband later adopted twin babies. She moved from Chandler to Portland, Maine, to be closer to family.

Still, the reminders of her battle come every day. Bill collectors consistently send payment-demand letters and call her cellphone to remind her of what she owes.

Serrano and her husband are attempting to buy a home, but their credit is poor because of the piles of medical bills.

She wants to move beyond her anger over the ordeal, but she acknowledges it is hard. She dwells on the fact that companies such as Health Net employ workers whose job is to flag policies such as hers.

"There is a person sitting at a desk making this decision." Serrano said. "What goes through their mind? It is wrong. It makes me sick."

Arizona Has 19 Confirmed Cases of Food Poisoning from Salmonella

ap@azfirm.com (Angelo Patane) — Fri, 13 Jun 2008 09:42:00 -0700

Betty Beard of the Arizona Republic has reported on the recent outbreak. Her articles states:

That Arizona now has 19 confirmed cases of salmonella saintpaul, a tomatoes food-poisoning outbreak that has sickened almost 170 people in 17 states, according to the Arizona Department of Health Services. Three Arizonans have been hospitalized; none has died. They range in age from 10 to 78.

Apache County has had seven cases, Maricopa County has had four, Navajo County, three, and one each in Pima, Pinal and Coconino counties. The locations of the other two are unknown. The onset dates ranged from May 2 to May 25.

The Centers for Disease Control and Prevention in Atlanta said its investigations suggest that large tomatoes, including Roma and round red, are the source.

Vinyl Shower Curtains May Cause Serious Injuries

ap@azfirm.com (Angelo Patane) — Fri, 13 Jun 2008 09:19:53 -0700

Tami Abdollah of the Los Angeles Times has reported that an environmental organization found high concentrations of dangerous chemicals in shower curtains sold at major stores. The article states:

Vinyl shower curtains sold at major retailers across the country emit toxic chemicals that have been linked to serious health problems, according to a report released Thursday by a national environmental organization.

The curtains contained high concentrations of chemicals that are linked to liver damage as well as damage to the central nervous, respiratory and reproductive systems, said researchers for the Virginia-based Center for Health, Environment & Justice.

The organization commissioned the study about two years ago to determine what caused that "new shower curtain smell" familiar to many consumers. "This smell can make you feel sick, give you a headache, make you feel nauseous or [cause] other health effects," said Michael Schade, a coauthor of the report.

Researchers tested the chemical composition of five unopened polyvinyl chloride, or PVC, plastic shower curtains bought from Bed Bath & Beyond, Kmart, Sears, Target and Wal-Mart. One of the curtains was then tested to determine the chemicals it released into the air.

The study found that PVC shower curtains contained high concentrations of phthalates, which have been linked to reproductive effects, and varying concentrations of organotins, which are compounds based on tin and hydrocarbons. One of the curtains tested released measurable quantities of as many as 108 volatile organic compounds into the air, some of which persisted for nearly a month.

Seven of these chemicals -- toluene, ethylbenzene, phenol, methyl isobutyl ketone, xylene, acetophenone and cumene -- have been identified by the Environmental Protection Agency as hazardous air pollutants, said Stephen Lester, the center's science director and a coauthor of the report.

Potential health effects include developmental damage and harm to the liver and the central nervous, respiratory and reproductive systems, according to the report.

Phthalates and organotins, which are not chemically bonded to the shower curtain, are often added to soften or otherwise enhance the curtain. These additives evaporate or cling to household dust more easily than the chemicals in the curtains themselves, Lester said. Volatile organic compounds also evaporate more easily than the less harmful chemicals, he said.

Vinyl chloride, which is a major building block of PVC, is a known human carcinogen that causes liver cancer, Lester said.

"PVC is just bad from cradle to cradle," said Martha Dina Argüello, executive director of the Los Angeles chapter of Physicians for Social Responsibility. "It's a mess when you create, it's a mess when you get rid of it, and it's off-gassing when you're using it."

Representatives of Target and Sears Holding Co., the parent company of Kmart, said their companies were phasing out curtains that contain PVC. Target said about 90% of the store's "owned brand" shower curtains offered this spring were made of materials other than PVC. Officials from the other companies were not immediately available for comment Thursday.

The report said that Bed Bath & Beyond had increased the number of PVC-free shower curtains it offered by selling those made of ethylene vinyl acetate and fabrics, but that Wal-Mart did not respond to the organization's faxes or letters requesting the retailer's PVC policy.

The American Chemistry Council issued a statement Thursday saying there was "no reliable evidence" that phthalates were harmful or linked to serious health problems, or that they were tied to the new shower curtain smell.

Argüello said studies were still being done on the effects of phthalates and other chemicals on people. Little information on toxicity is available for 86 of the 108 chemicals detected in the curtains, Lester said.

The EPA has tested vinyl shower curtains and in 2002 said it had found that many of the same chemicals listed in the center's report. Lester said the test drew attention to the lack of government regulations or health-based guidelines governing indoor air pollutants.

"The EPA does not regulate indoor air, period," said Barbara Spark, the indoor air program coordinator for the EPA's Pacific Southwest region. "We have not been given that authority by the Congress."

The Center for Health, Environment & Justice sent a letter to 19 major retailers Thursday informing them of the new report and encouraging them to stop selling PVC products.

"Most companies aren't aware of some of the risks these products entail," Lester said. "Once they're informed of this, they're in many cases ready to make changes and purchase alternative products."

Rural Areas Lack Level One Trauma Centers

ap@azfirm.com (Angelo Patane) — Thu, 12 Jun 2008 15:09:35 -0700

Accidents resulting in serious physical injuries often require treatment at a level one trauma hospital. These special trauma centers are equipped to provide emergency medical services and complex treatment to patients suffering traumatic injuries. T.M. Shultz of the Daily Courier has written about the lack of level one trauma centers in Arizona's rural areas:

More than 24,000 people suffer severe injuries in Arizona each year, according to the Arizona Department of Health Services. More than 60 percent of these injuries happen in rural areas like Prescott.

When trauma injuries happen here, a helicopter has to take patients to the nearest of seven state-certified Level One Trauma Centers that has room for them - unless the weather is bad. Those centers are in Flagstaff, Tucson, Phoenix and Scottsdale.

The American College of Surgeons - the national physicians group that sets the standards for trauma care - says if trauma patients can get to the right trauma care within the first "golden" hour after their injury, about 300 more Arizonans would survive each year. So why doesn't Prescott's Yavapai Regional Medical Center have a Level One Trauma Center?

It's simple.

It doesn't have enough money to pay for the around-the-clock medical care necessary to qualify for the designation. Trauma surgeons - and teams of trauma nurses, technicians and anesthesiologists - must be on site at all times. Specialty surgeons, like neurosurgeons, must be available within 30 minutes.

Most hospitals meet these requirements by affiliating with teaching programs and by having dedicated trauma operating rooms with various labs and scanning equipment, such as MRI and CAT scans, adjacent to their emergency room department.

"So there are huge costs to having these programs," said Mardy Taylor, chief nursing officer at YRMC. "You have to show that you can provide all those services at all times. It's a huge endeavor." The seven Arizona hospitals that are state-designated Level One Trauma Centers are University Medical Center in Tucson, Flagstaff Medical Center, Scottsdale Healthcare Osborn, and the following Phoenix hospitals: Banner Good Samaritan Medical Center, Maricopa Medical Center, St. Joseph's Hospital and Medical Center, and the John C. Lincoln North Mountain Hospital.

A second Level One Trauma Center in Tucson closed a few years ago, Taylor said, "because they couldn't afford to keep all the services up and running."

Sandi Espinoza, Taylor's counterpart at the Flagstaff Medical Center, said that in addition to state certification, Flagstaff's hospital is working hard to get additional Level One Trauma Center certification from the American College of Physicians. That additional certification should be in effect by the end of the year, Espinoza said.

"There really isn't much difference except the American College of Surgeons is much stricter," Espinoza said.

When an accident happens in the Prescott involving head injuries or multiple traumas, Taylor explained, the patient falls into the level one criteria and needs level one care. Everyone involved in emergency service in Arizona understands what the criteria are, Taylor said. The emergency workers then call YRMC on a special phone. An emergency room doctor either confirms the standard protocol or authorizes a change, Taylor explained. At the same time, dispatch calls for the nearest helicopter.

The hospital has one Native Air helicopter stationed at each of its two campuses, Taylor said. Air Evac has a third helicopter stationed at Prescott's Earnest A. Love Field. In the past few years, the hospital has had about one person a day flown to a Level One Trauma Center from the Prescott area, Taylor said.

"(Those numbers) may be creeping up a little bit with the increasing population," Taylor said.

Taser Handed First Loss in Wrongful Death Case

ap@azfirm.com (Angelo Patane) — Wed, 11 Jun 2008 17:38:34 -0700

Patrick O'Grady of the Phoenix Business Journal has reported that Taser International Inc. was deemed partially responsible for the 2005 death of a Northern California man, resulting in a damage award of more than $6.2 million. The verdict is the first case lost by the Scottsdale-based company. His article states:

The jury in the U.S. District Court case found Taser 15 percent responsible in the death of Robert C. Heston, while Heston himself was 85 percent responsible.

Heston was struck three times by Salinas, Calif., police officers using a Taser stun gun, and the lawsuit argued that the shocks combined with the fact he was intoxicated with methamphetamine caused his death.

Taser officials said they were disappointed with the outcome and may file an appeal or a motion for a new trial.

The company's stock had dropped about 12 percent since its close Friday before the announcement. It closed at $6.90 on Friday and rested at $6.03 per share by Tuesday morning.

Bad Faith Damages In Arizona

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 14:46:49 -0700

Victims of Arizona bad faith may pursue their insurance company for several types of damages. Damages in a bad faith lawsuit may include:

monetary losses
unpaid policy benefits due
damage to credit
humiliation
inconvenience
anxiety
punitive damages

The amount of damages a plaintiff receives....

Difference Between First Party And Third Party Bad Faith In Arizona

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 13:39:42 -0700

In Arizona, there are two general types of bad faith claims – first party and third party. The names can be a bit confusing, particularly the term “third party bad faith” as that term means something else in different states.

In Arizona, insurance companies have a duty of good faith and fair dealing only to the insured. The insurance company does not have a duty of good faith and fair dealing to a third party making a claim against an insured.

In other words, when an insured presents a claim against his or her insurance policy, or when a person presents a claim or lawsuit against an insured, the insurance company owes the insured a duty of good faith and fair dealing in handling the claim. This is because the insurance agreement between insured and insurer implies a duty of good faith and fair dealing. Where a claimant presents a claim against an insured, the insured’s insurance company does not owe the claimant a duty of good faith and fair dealing because there is no insurance contract between the insured and the claimant. Other states may require good faith and fair dealing in such a circumstance and where the insurance company breaches this duty, these states may call this third-party bad faith. However, Arizona does not recognize this type of third-party bad faith claim.

Arizona’s laws, unfortunately, do not permit the third-party claimant much, if any, recourse against an insurance company that is treating the claimant unfairly. Insurance laws prohibit “unfair claims practices,” but specifically prohibit claimants from suing insurance companies for “unfair claims practices.” The law does, however, allow claimants to sue insurance companies for “abuse of process” where the insurance company unfairly forces a claimant to litigate a case. However, to date, there have been minimal filings of these types of cases in Arizona due to the difficult nature of prevailing upon them.

Arizona law does use the term “third-party” bad faith in specific, complicated contexts. Generally speaking, and under certain circumstances an insured who is not being adequately protected by an insurance company and who may have a claim for bad faith against the insurance company may assign his or her bad faith rights to the third-party, who then may pursue the insurance company for its failure to protect the insured. There are many variations of this scenario. A simple example is the following: An insured causes a car accident and injures a the claimant. The claimant files a claim against the insured and the insurance company wrongly contends there is no coverage. The insurance company, therefore, has exposed the insured to personal liability for the claimant’s injuries. Thus, the insured has a claim for bad faith against the insurance company. In Arizona, the insured and the claimant may enter into an agreement where they agree to resolve the insured’s claim for a reasonable sum. As part of the agreement, the claimant agrees not to execute against the insured’s assets and the insured assigns his or her bad faith claim against the insurance company to the claimant. The claimant, having been assigned the insured’s bad faith claim, then pursues the insurance company for bad faith. This is called “third-party bad faith” in Arizona. The benefit to the insured is that he or she escapes personal liability. The benefit to the claimant is that he or she can proceed against an insurance company for the full benefit of the claim.

How Do Uninsured And Underinsured Motorist Claims Differ From Other Claims Or Lawsuits?

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 13:28:27 -0700

An uninsured or underinsured motorist claim is similar to a traditional claim against another driver’s insurance company, except, in many cases, with regard to procedure.

The initial procedure with regard to an uninsured or underinsured motorist claim is to submit a demand for damages to your insurance company. Your insurance company will have the right to independently obtain information about you and your claim, such as medical records and bills, wage loss information, etc. The insurance company will also have the right to take your sworn statement with your attorney present.

If you and your insurance company cannot agree on an amount to resolve your claim, your case may or may not proceed to a lawsuit. Some insurance companies’ insurance agreements contain arbitration agreements, allowing you to demand an arbitration hearing to resolve the amount, if any, your insurance company owes you. This is how uninsured and underinsured motorist claim procedure differs from a traditional claim. In a traditional claim situation, if you and the other driver’s insurance company cannot agree on a resolution, you simply file a lawsuit. In many uninsured and underinsured motorist claims, the procedure is to demand arbitration.

Normally, the insured selects an arbitrator, the insurance company selects an arbitrator, and then the two arbitrators agree on a third arbitrator. Your case is then presented to these arbitrators in a semi-formal setting. The presentation of evidence is usually abbreviated and takes place in a matter of hours, rather than days, as might be normal in a jury trial of the same matter. Once a majority of arbitrators agree on a finding, they issue it and it is final and not appealable.

Some insurance companies, however, do not have arbitration clauses. In this scenario, the insured’s only option is to file a lawsuit and try the case to either a court-appointed arbitrator (in Maricopa County less than $50,000) or to a jury.

Overview of Uninsured / Underinsured Motorist Insurance In Arizona

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 13:27:03 -0700

In Arizona, when you purchase car insurance, your insurance agent is required by law to offer uninsured and underinsured motorist coverage in the amount of your liability policy.

Uninsured motorist coverage protects you in the event you are in an accident with another motorist who does not have valid insurance. In such event, you can file a claim with your own insurance carrier up to the limit of your uninsured motorist limits for personal injuries, which include medical bills, lost wages, and pain and suffering.

Underinsured motorist coverage protects you in the event you are in an accident with another motorist who does not have enough insurance to cover the value of your injury claim. In such a case, you can file a claim with your own insurance carrier up to the limit of your underinsured motorist limits.

Insurance Company Duties Toward Insureds

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 13:04:07 -0700

When a claim is presented against an insured and the insured turns to his or her insurance company for help, or when an insured presents a claim to his or her insurance company for benefits, the insurance company has a number of duties to its insured, including:

The duty to defend
The duty to indemnify and pay claims against the insured that are covered
To deal with the insured in good faith and fairly deal with the insured.

What does is the duty of “good faith and fair dealing”? In Arizona, when handling an insured’s claim, an insurance company must, for example:

Promptly pay a legitimate claim
Immediately conduct an adequate investigation
Act reasonable in evaluating a claim
Refrain from doing anything that jeopardizes the insured’s security interest
Refrain from forcing the insured to jump through needless adversarial hoops
Refrain from low-balling claims
Refrain from delaying in hopes the insured will settle for less.

Overview of Arizona Bad Faith

ap@azfirm.com (Angelo Patane) — Mon, 28 Apr 2008 13:00:21 -0700

“Bad faith” is the legal term for when an insurance company breaches the covenant of good faith and fair dealing implied in every insurance contract. Generally speaking bad faith occurs when an insurance company unreasonably refuses to provide coverage or pay an insured insurance benefits. Legally, bad faith is considered a breach of the covenant of good faith and fair dealing implied in every insurance agreement.

With very limited exception, the person who can file a bad faith claim in Arizona is the insured. Arizona does not allow an injured person to sue the other driver’s insurance company for bad faith where, for example, the insurance company low-balls a claim or refuses to settle. Arizona’s bad faith law is based on the relationship between the insured and the insurer.