Lawsuits targeting business websites over ADA violations are on the rise

http://www.latimes.com/business/la-fi-hotels-ada-compliance-20181111-story.html

The boutique Avanti Hotel is known for its poolside, dog-friendly rooms. Yet its website uses the valuable opening page not to highlight the Palm Springs inn’s amenities, but to explain, in stark black letters on a plain white background, that the Avanti violated the Americans with Disabilities Act.

Like thousands of other businesses in the United States, the 10-room hotel on East Stevens Road has been sued because it hasn’t fully complied with the 1990 law that requires public places — hotels, restaurants and shops — to be accessible to people with disabilities.

But Avanti isn’t being accused of failing to build a wheelchair ramp or install handrails — common charges in the scores of ADA lawsuits in years past. Instead, the information on recovering from a bankruptcy contends that the hotel’s website can’t be used by people who have problems seeing or hearing.

Avanti Hotel and others have been caught up in a recent wave of ADA lawsuits from source targeting websites across the country. The Trump administration’s decision to stop drafting rules for website ADA compliance is widely seen as opening the floodgates to legal action.

Nearly 5,000 ADA lawsuits were filed in federal court for alleged website violations in the first six months of 2018, according to an analysis by Seyfarth Shaw, a law firm that specializes in defending such cases. The firm predicted that the number of lawsuits will climb to nearly 10,000 by the end of the year, a 30% increase from 2017. The lawyers for DUI charges in Delaware are also known for defending such cases.

With online sales, reservations and job postings now a huge part of modern commerce, advocates for the disabled say websites need to be as accessible to everyone, just as brick-and-mortar stores, restaurants and schools are.

“We have been dealing with website issues for a long time,” said Jim Thom, past president and government affairs director for the California Council of the Blind. “We want compliance. It is a serious problem, no question about it.”

For a website to be accessible to disabled people, the content must be coded so that screen-reading software can convert the words to an audio translation. Video that appears on a website must include descriptions for the deaf. Also, all interactive functions must be operable through keyboard commands for people who can’t use a mouse.

No formal government standards exist for private businesses to follow to ensure their websites comply with the ADA, although a consortium of web innovators has created guidelines, known as the Web Content Accessibility Guidelines, to make websites more accessible to disabled people. Government websites already follow those guidelines, but private business websites, which are typically loaded with images and video, tend to be more difficult to overhaul to meet the guidelines, experts say.

The cost of making sites accessible ranges from several thousand dollars to a few million dollars, depending on the complexity of the site, according to trade groups and business owners.

ADA lawsuits, filed in federal and state courts, have targeted the websites of retailers (including Winn-Dixie Stores Inc. supermarkets), restaurants (including Domino’s Pizza Inc.) and universities (including Harvard and MIT).
Customer Matt Thomas sits at a table at a Hooters restaurant in Los Angeles as employee Keiana Martinez delivers a meal to another customer. The Hooters chain was sued because its website did not comply with the Americans with Disabilities Act.
Customer Matt Thomas sits at a table at a Hooters restaurant in Los Angeles as employee Keiana Martinez delivers a meal to another customer. The Hooters chain was sued because its website did not comply with the Americans with Disabilities Act. (Mel Melcon / Los Angeles Times)

The Hooters restaurant chain was sued last year, even after the chain agreed to fix its website as part of a settlement of a previous lawsuit. A federal appeals court ruled that Hooters remained vulnerable to lawsuits until it fixed the website under the previous lawsuit settlement.

Earlier this month, the American Council of the Blind announced that it had reached a settlement with the streaming service Hulu to make Hulu’s website and software app more accessible to blind users.
Streaming service Hulu has settled a lawsuit with the American Council of the Blind to make Hulu’s website and software app more accessible to blind users.
Streaming service Hulu has settled a lawsuit with the American Council of the Blind to make Hulu’s website and software app more accessible to blind users. (Hulu.com)

The cost of defending such lawsuits can be burdensome for small businesses such as the Avanti Hotel.

Fixing the site would cost about $3,000, which hotel manager Jim Rutledge said he is willing to pay. But the lawsuit demands the hotel also pay damages to the plaintiff, and Rutledge said his lawyers advise him that he may have to settle for between $8,000 and $13,000.

“I would really like to fight it, but it just comes down to finances,” he said, estimating that he could be forced to pay up to $25,000 in damages, plus lawyer fees, if he fights the suit and loses. In the meantime, several pages of the hotel’s website have been replaced with plain type because “no access is equal access for everyone, per the ADA requirements,” the site notes.

Some trade groups say the lawyers and plaintiffs who file many of these lawsuits are only interested in using the law to pocket hefty court-imposed damages.

“Simply put, for those who are abusing the system, it’s about money, not about expanding access,” said Peter Clerkin, a spokesman for the Asian American Hotel Owners Assn., which is advising its members to make websites ADA-compliant and not wait to get sued.

Since it was signed into law by President George H. W. Bush in 1990, the Americans with Disabilities Act has been cited thousands of times in lawsuits filed against hotels, restaurants and shops to remove physical barriers for disabled people.

As early as 2009, the act was cited in lawsuits that targeted the websites of businesses and universities, saying the online portals must be just as accessible to disabled people as the buildings that house businesses and schools.

In 2010, the Justice Department began to draft formal regulations for websites to meet ADA goals. But last December, the agency announced it was withdrawing its “rulemaking process,” at a time when the Trump administration was calling for a rollback of federal regulations.

The department said it was killing the regulations because it was “evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate.”

In a June 20 letter, 103 members of Congress — Republicans and Democrats — urged then-Atty. Gen. Jeff Sessions to adopt website regulations, saying the absence of such regulations “only fuels the proliferations of these suits.”

Lawyers who defend ADA lawsuits say the Justice Department’s actions to pull the plug on adopting new regulations may have instigated the latest surge in lawsuits.

Business owners who are sued under the ADA complain that the law allows plaintiffs to demand huge payouts in damages without first giving the business owner the opportunity to fix the websites.

California leads other states by far in ADA lawsuits filed over website accessibility, according to the Seyfarth Shaw analysis. That may be because a California law sets a minimum dollar amount for damages of $4,000 plus attorney’s fees for each ADA violation, a minimum not imposed in most other states. The minimum, according to lawyers who defend such lawsuits, makes suing in California more lucrative.

The lawsuit against Rutledge’s hotel was filed by Manning Law in Newport Beach. The plaintiff was Kayla Reed, who is described as a resident of Montana. Manning Law has filed 355 ADA cases, primarily in California, in the last 12 months, according to court records.

In an email, Joseph Manning, an attorney at Manning Law, declined to comment on the case against the Avanti Hotel, but rejected criticism that his lawsuits are intended to enrich him and his clients.

“This case will not be resolved without addressing the accessibility concerns in the complaint, of that I can assure you,” he said.

Reed, who is described in the Avanti lawsuit as visually impaired, is listed as a plaintiff on more than three dozen lawsuits in federal court and in state courts in Ventura and San Bernardino counties, court records show. The defendants in her lawsuits include Kmart, Hugo Boss, David’s Bridal and CVS Pharmacies.

The Los Angeles Times couldn’t locate Reed, and Manning said she would not comment on her lawsuits. But he said that money is the “least important issue for her in these cases,” adding that “private enforcement of these laws is also the means devised by Congress to enforce these laws without burdening the taxpayer.”

Manning was listed as Reed’s lawyer in a Ventura County Superior Court suit against CVS in 2017, according to court records. In the suit, she is described as a resident of Ventura County who was seeking $75,000 in damages, saying that the CVS website was not accessible to blind people.

The case was eventually transferred to U.S. District Court in Los Angeles. The case was dismissed Dec. 8, 2017, when the court was notified that a settlement had been reached. The details of that settlement were not disclosed.

Manning declined to comment on the settlement.

Asked to comment, CVS issued a statement saying the company is “committed to compliance with the Americans with Disabilities Act and other laws and regulations related to assisting individuals with disabilities.”

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Veterans Day: By the time I saw my VA doctor, he said it was too late

https://www.foxnews.com/opinion/veterans-day-by-the-time-i-saw-my-va-doctor-he-said-it-was-too-late

As I sat in the Phoenix Veterans Affairs hospital on Dec. 21, 2012, I had no idea my life was about to change. I’d seen a nurse practitioner in 2011 and was finally consulting with a VA urologist almost a year later. I knew something was wrong, but I wasn’t prepared for the diagnosis I was about to receive.

“You’ve got one of the worst cases of prostate cancer I’ve ever seen in my life,” the urologist said to me. “Hospice will call you Monday morning.”

Those words hit me like a ton of bricks.

I was diagnosed with stage 4 prostate cancer. Had I been seen by a doctor sooner, my cancer could have been detected before it had progressed so far. Now it was too late. My cancer was so advanced the VA wouldn’t even offer me a treatment option.

I had joined the U.S. Army in 1989 as a young, ambitious kid. I honorably served my country for 18 years in the infantry and military police. When I took off the uniform, I relied on the promise I would be cared for as one who “shall have borne the battle.” But that promise was broken.

I was let down by government, the country that I served and loved. That hurt worse than my diagnosis.

The road I’ve traveled has been long and grueling. Leaving the VA behind, I sought another opinion from a private-sector doctor. I immediately underwent surgery, followed by years of intense radiation, chemotherapy and anti-hormone therapy.

Today, my cancer is in remission, thanks to the willingness of my non-VA doctors to fight for me. I still struggle and endure regular physical pain, but I’ve overcome far more than I or the VA expected.

Now Concerned Veterans for America Foundation has given many of us an even larger platform to share our experiences, a documentary titled “The Care They’ve Earned.”

Unfortunately, I am not the only veteran who has been denied the care they earned. Thousands of others wait months and even years for medical care and have to endure the bureaucratic red tape of the VA’s health care system every day. They do this because, until recently, it was the only option.

My experience motivated me to act – I wasn’t willing to sit by while veterans literally died waiting for care from the VA. I led the charge to expose the VA’s flaws by reaching out to the press, rallying friends and family, talking to lawmakers, partnering with advocates, and winning the landmark medical malpractice lawsuit against the Phoenix VA for $2.56 million last year. The voice of veterans has been heard loud and clear.

A few months ago, I got to stand beside the president as he signed the VA MISSION Act. This law will make it much easier for veterans to access medical care outside the VA. No more waiting months to see a doctor or driving hundreds of miles to a distant VA facility. We are finally going to get the care we earned.

When we tell our stories and call for change, people listen. Now Concerned Veterans for America Foundation has given many of us an even larger platform to share our experiences, a documentary titled “The Care They’ve Earned.” The film sheds light on my life-or-death battle for medical care along with other veterans around the country. We talk about the care we’ve received from the VA and how we’ve often been disappointed by its flawed health care system.

This Veterans Day, I encourage you to watch “The Care They’ve Earned” on Amazon Prime. Hear the voices of those who served and were disappointed by their government.

Thank you to all my fellow veterans for your service to this nation and to those at home who support and care for us. Happy Veterans Day.

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Ignored As An Election Issue, Deaths From Medical Errors Have Researchers Alarmed

https://www.forbes.com/sites/leahbinder/2018/11/09/ignored-as-an-election-issue-deaths-from-medical-errors-have-researchers-alarmed/#268d65a8653d

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Patient Abandonment Cases: What You Need To Know

www.theexpertinstitute.com/patient-abandonment-cases-what-you-need-to-know/

Patient abandonment is a serious, yet often overlooked, form of medical malpractice. Generally, patient abandonment occurs when a physician terminates medical treatment without a justifiable excuse or reasonable notice so that the patient can find a replacement physician. Most studies on medical malpractice claims in the United States do not specifically isolate instances of patient abandonment, so there is  little concrete data on this phenomenon. A study conducted on the rates of medical malpractice lawsuits in the United States between 1992 and 2014 found that misdiagnosis, surgical errors, and treatment-related mistakes are the most common types of claims, respectively. However, how exactly patient abandonment fits within these claims is not stated.

Unlike the more common medical malpractice claims, which involve a specific action taken by a physician, patient abandonment occurs more by the omission of proper conduct. This does not mean that a physician is susceptible to a patient abandonment claim each time a doctor-patient relationship is terminated. However, a clear understanding of its definition and legal implications can help form a medical malpractice claim or defense.

What Constitutes Patient Abandonment (And What Doesn’t)

Patient abandonment cases are very fact-specific and the exact legal definition varies state-to-state. The general elements of patient abandonment claims are:

• 1) There was an established doctor-patient relationship
• 2) The physician abandoned the patient while medical attention was needed
• 3) The abandonment occurred abruptly, preventing the patient from finding a replacement physician
• 4) The patient suffered an injury as a direct result of the abandonment

In order to effectively evaluate a potential patient abandonment claim, the first question one must ask is whether there existed a doctor-patient relationship. While this element might seem intuitive, there is more to this question than meets the eye. A doctor-patient relationship is typically created when “professional services of a physician are rendered to, and accepted by, another person for the purposes of medical or surgical treatment.” See Cygan v. Kaleida Health, 51 A.D.3d 1373, 1375 (2008). However, the law also recognizes circumstances in which the existence of a physician-patient relationship is implied by circumstances. “An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional.” See Thomas v. Hermoso, 110 A.D.3d 984, 985 (2013); See Pizzo-Juliano v. Southside Hosp., 129 A.D.3d 695, 697 (2015) (held that a doctor-patient relationship existed between plaintiff and the hospital’s on-call plastic surgeon, who was unavailable to treat the patient and decided on the phone that the injuries could be treated by a physician’s assistant).

There are instances, however, that can circumscribe the relationship from a legal perspective. Some physicians may provide a written statement to their patient during an initial visit that states the visit is only for evaluation purposes and does not guarantee entry into the physician’s practice.  Likewise, in limited examination contexts, such as volunteering at health fairs or providing informal medical advice on websites, a disclaimer may be provided which states that the examination or offered information does not constitute an ongoing doctor-patient relationship.

Once a formal relationship between the physician and patient has been established, whether the termination was appropriately handled must be examined. Importantly, termination of the doctor-patient relationship can be a completely unilateral decision on the part of the doctor. Physicians are not obligated to treat each and every patient in perpetuity. However, physicians cannot terminate the relationship during a time when medical treatment is necessary and/or the patient cannot be immediately transitioned to another doctor. For example, in an emergency, a doctor cannot deny treatment to a patient on the grounds of an outstanding medical bill. Likewise, a physician cannot be unreasonably unresponsive to a patient. Even if a physician does not intend to terminate the relationship, it is still considered abandonment if the physician makes themselves unavailable for a prolonged period of time. Depending on the particular circumstance, a physician may be found to have abandoned their patient by taking a vacation without notifying their patients or arranging for emergency coverage; being unresponsive to a patient’s questions in email or other correspondence; failing to follow up with a patient after surgery or prescribing a new medication; or failing to provide treatment to the patient by a specified time.

The patient’s necessity for medical treatment also goes hand-in-hand with whether reasonable notice was given to provide the patient with the opportunity to find replacement care. For example, a doctor cannot abruptly shut down their medical practice without making arrangements to ensure that her patients have alternative care. However, doctors are under no obligation to personally find their patients replacement physicians. It may be difficult to find physicians that practice in the same sub-specialties within the same area. Also, some doctors may not be keen on recommending a patient that was particularly discourteous or troublesome to their colleagues. All a physician is required to do is to give adequate notice to the patient (30 days in most states) to the patient and support the transition to alternative care, which may include providing records or engaging in a discussion with the new doctor.

There are numerous reasons that a physician may terminate their relationship with a patient that do not constitute patient abandonment. If a doctor knows that he does not possess the requisite skill or knowledge to handle a patient’s particular issues, they are under no requirement (nor is it preferable) to continue treatment. If a patient does not follow the doctor’s orders, which includes being chronically late to appointments or not taking the necessary prescribed medications, termination may be warranted. As long as the termination is done in an appropriate manner, such action does not constitute abandonment.

What Do The Experts Say?

Like any other medical malpractice action, patient abandonment cases require the use of a medical expert to establish the standard of care and deviation of that standard by the defendant. Experts may also be required prior to filing suit. Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical, pediatric, and dental malpractice complaints be accompanied by a certificate of merit stating that the plaintiff’s attorney has consulted with at least one physician and has concluded that there is a reasonable basis for the commencement of the action. Medical expert affidavits are also typically used throughout motion practice. However, there are occasions in the cases of patient abandonment in which an expert affidavit is not necessary. “Common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly suggest that the condition of the plaintiff at the time that he was abandoned by the defendants was not compatible with skillful treatment.” See Mevorah v. King, 303 A.D.2d 657, 657–58, 756 N.Y.S.2d 794, 795 (2003).

That being said, medical experts are typically needed to set forth the consequences of the physician’s abandonment within the context of the patient’s specific facts and circumstances and to establish whether the alleged abandonment represented a departure from the acceptable medical practice. The status of a patient’s condition is necessary to determine whether a physician effectively terminated the relationship. For example, a patient who had undergone heart surgery and requires a multitude of follow-up appointments is vastly different from a patient who visited a doctor once to treat a cold. Thus, a medical expert in the particular field as the defendant doctor is important to establish whether the termination occurred during a time when medical treatment was necessary and if, under the circumstances, the timing and notice was unreasonable.

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Jury delivers $25.5 million ‘statement’ to Aetna to change its ways

https://www.cnn.com/2018/11/10/health/aetna-verdict-oklahoma-orrana-cunningham/index.html

When insurance wouldn’t pay, parents funded cancer patient’s $95,000 lifesaving treatment

However, Orrana died May 30, 2015, at the age of 54, in part from a viral infection that reached her brain.

Ron Cunningham said this week’s verdict was vindication for the suffering his wife went through. She had filed the initial paperwork to sue Aetna, saying that if her case helped save the life of one person, it would be worth it.

“My wife started the case, and I’m just finishing the fight,” he said. “We did her proud. My wife wanted to make sure that it got out. Her comment was ‘if we could just save one person.’

“As far as the money, I’d give it all back to spend just one more day with her.”

Aetna attorney John Shely said in closing arguments that the insurance giant was proud of the three medical directors who denied coverage, even turning to thank them as they sat in the front row of the courtroom, according to jurors and other witnesses in court.

It was a message that didn’t sit well with the 12 jurors, who found that Aetna “recklessly disregarded its duty to deal fairly and act in good faith with the Cunninghams.”

“I just felt like Orrana Cunningham was failed at every turn,” forewoman Ann Schlotthauer said.

CNN Exclusive: California launches investigation following stunning admission by Aetna medical director

She said the verdict “was definitely a message to Aetna. We discussed that in jury deliberations — that we wanted to make a statement. We wanted to make a point and get their attention.”

‘Aetna needed to pay’

Schlotthauer said it was clear from expert testimony that proton beam therapy was not experimental at all. She said jurors were turned off by one Aetna medical director who acknowledged handling 80 cases a day and by the fact that all three medical directors acknowledged they spent more time preparing for the lawsuit than on Orrana’s medical case.

Schlotthauer said she believed that Aetna’s medical directors “rubber-stamped” the denials without doing their due diligence. “No one was looking at her specific case,” she said. “That’s where we decided that obviously they were in breach of contract and should’ve paid for that treatment. It was medically necessary in her situation.

“I hope [the verdict] does result in huge changes,” she said. “I hope it results in Aetna re-evaluating how they evaluate appeals and requests.”

Juror Ora Dale cried and hugged Cunningham after the trial. She was one of two jurors who believed the monetary award should’ve been much higher than the $25.5 million handed down.

“I just wanted to let him know that I was on his side,” Dale said. “Those medical directors did not exhaust every measure like they said that they did. They did not spend enough time on her claim. It just kept getting denied and denied.

“Aetna needed to pay. They were in the wrong, and he deserved everything that he was asking for.”

Her only chance at life is a new liver, but her insurer said no. Then she wrote a powerful plea to the CEO

Cunningham had another encounter in court. He said Shely, Aetna’s lead attorney, walked up to him and congratulated him after the verdict before telling him he’d lose on appeals.

Cunningham was an Oklahoma City firefighter when the Alfred P. Murrah building was bombed on April 19, 1995, killing 168 people and wounding hundreds more in one of the deadliest terror attacks in American history. The day after the bombing, he was assigned to comb through the wreckage of the day-care center on the second floor to search for bodies of children. He said he would spray corpses with Lysol to prevent the spread of bacteria.

He’d seen the worst of the worst. But little could’ve prepared him for that encounter with Aetna’s attorney in the courtroom. He said he stood, stunned, trying to grasp what he’d just heard.

“That showed how callous these people are,” he said.

Shely did not respond to a request for comment.

Aetna, the nation’s third-largest insurer, declined to comment on the encounter but maintained that it acted appropriately in denying coverage in this case, saying there is a “lack of clinical data supporting proton therapy for treating nasopharyngeal tumors.”

“While we have no comment on the ruling, juror motives or a potential appeal, we do want to make it clear that the proper steps under the health plan were followed in this instance,” Aetna said in a written statement. “As our chief medical officer noted in a post earlier this year, it’s never easy to tell an individual or family that a treatment or procedure is not approved — it’s the hardest thing we have to do.

“However, our guiding principles will continue to be proven effectiveness and member safety, as determined by rigorous scientific studies.”

Doug Terry, the lead attorney for the Cunninghams, offered a much different take.

“We believe this case pulled the curtain back on what goes on at a health insurance company when claims are being denied,” Terry said. “The jury’s verdict delivered the message that the public will not stand for insurance companies putting profits before policyholders.”

Defense attorney: Aetna did ‘nothing wrong’

It is not uncommon for people with cancer to be denied proton beam therapy by insurers, despite the recommendations of their treating physicians. Many radiation oncologists express frustrations about the denials, and websites exist offering tips and recommendations on how to try to get insurance companies to pay for coverage of proton therapy.

Other cancer patients often turn to sites like GoFundMe to raise money for their treatment. Some insurers eventually agree to cover therapy for adult patients after a lengthy appeals process.

Ron Cunningham said that his wife was his “rock” and that the verdict was justice.

Daniel E. Smith, executive director of the Alliance for Proton Therapy Access, applauded the verdict and called on insurance commissioners in all 50 states to make sure the treatment will now be covered by insurance companies when treating doctors believe that it is the best available treatment for their patients.

“We applaud Ron Cunningham for standing up to Aetna, and the jury for recognizing and holding Aetna to account for their broken system,” Smith said in a statement. “We’ve seen a similar pattern of betrayal across the industry, where insurers use outdated information and medical staff with little knowledge of proton therapy to ultimately deny as many as four in 10 patients seeking the treatment. It’s past time to hold insurers accountable.”

Some jurors said that one of the most convincing experts was radiation oncologist Dr. Andrew L. Chang, who explained why proton beam therapy was the best treatment for Orrana Cunningham. He was not involved in her care but was called as an independent expert by her attorneys.

“The thing I tried to illustrate to the jury is that proton therapy is not a new, experimental technique, like Aetna wants to claim,” Chang said. “Proton therapy is a well-established treatment for cancer and has been for decades. … Nobody in the oncology community considers proton therapy experimental for the treatment of cancer.”

He said he told jurors that Medicare covers proton treatment and that insurance companies often cover it for an array of cancers for pediatric patients, typically up to the age of 21.

“One thing we pointed out is that as much as Aetna and these other insurance companies like to say proton therapy is experimental, they always put a caveat in there that it’s not experimental for pediatric patients,” Chang said. “We pointed out Medicare pays for it for 65 years or older. So, what is it about 22-year-olds to 64-year-olds that makes proton therapy experimental? There is no good answer for that; insurance companies call it that because they decided to deem it as such.”

Two top cancer specialists, not affiliated with the trial, told CNN they agreed with Chang’s assessment.

In Orrana’s case, Chang said, the tumor was right next to her brain stem and optic nerve, and it had been growing up toward the base of her skull. He said he told jurors that standard radiation could’ve been used, as Aetna wanted, but the “risks were severe.”

“She would go blind. She would lose a significant portion of her memory on the left side of her brain and still not have a very good chance at a cure,” Chang said. “For her particular tumor, [proton therapy] was extremely valuable.”

Before Orrana died, he said, scans showed that the tumor was shrinking and the treatment was working.

Aetna attorney Shely told jurors that this was a case “of misplaced blame by Mr. Cunningham and his lawyers,” according to the official court transcript.

“Aetna has full confidence in your ability to hear the evidence from that witness stand and then later compare it to the opening statement you just heard,” Shely said during his opening statement. “In short, the evidence that you will see and hear will convince you that Aetna has done nothing wrong, nothing.”

After considering the evidence, the jury did, in fact, find fault with Aetna’s handling of the case, voting on Monday to award $15.5 million in emotional distress damages and on Tuesday tacking on $10 million in punitive damages.

Kent McGuire, a personal injury attorney in Oklahoma who watched parts of the trial, called the verdict the biggest bad faith insurance verdict for an individual case in Oklahoma history. “It was certainly a stunning verdict to award that much money, and it was a message, too,” he said.

Ron Cunningham said his wife would be pleased with the verdict.

She used to comfort him on hard days — whether it was in the months after the 1995 bombing or after he’d find a child badly injured in a house fire. He’d come home, place his head in her lap and tell her everything on his mind.

“She was a rock for me, especially through my bad times,” he said.

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The past two weeks at trial, he said, were especially hard because it brought back so many memories. Of his own battle with cancer in 1998, when she stuck by his side. Of washing her body as she weakened from cancer. Of simply missing the gal who stole his heart four decades ago.

Orrana was known to take in stray animals. Cats, dogs, you name it. Ron would tell her he was the biggest stray she ever took in. He laughed while recalling that moment.

He then talked about the three Aetna medical directors; he said each testified that “they wouldn’t change anything they did.”

When the jury said Aetna “recklessly disregarded” Orrana’s case, Ron Cunningham said, he finally felt justice.

“When they said that, it was like, ‘I think we did her proud,’ ” he said.

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Trump says he is likely to support ending blanket federal ban on marijuana

http://www.latimes.com/politics/la-na-pol-trump-marijuana-20180608-story.html

President Trump said he likely will support a congressional effort to end the federal ban on marijuana, a major step that would reshape the pot industry and end the threat of a Justice Department crackdown.

Trump’s remarks put him sharply at odds with Atty. Gen. Jeff Sessions on the issue. The bill in question, pushed by a bipartisan coalition, would allow states to go forward with legalization unencumbered by threats of federal prosecution. Sessions, by contrast, has ramped up those threats and has also lobbied Congress to reduce current protections for medical marijuana.

Trump made his comments to a gaggle of reporters Friday morning just before he boarded a helicopter on his way to the G-7 summit in Canada. His remarks came the day after the bipartisan group of lawmakers proposed their measure.

One of the lead sponsors is Sen. Cory Gardner (R-Colo.), who is aligned with Trump on several issues but recently has tangled with the administration over the Justice Department’s threats to restart prosecutions in states that have legalized marijuana.

“I support Sen. Gardner,” Trump said when asked about the bill. “I know exactly what he’s doing. We’re looking at it. But I probably will end up supporting that, yes.”

The legislative proposal, which is also championed by Sen. Elizabeth Warren (D-Mass.), would reshape the legal landscape for marijuana if it becomes law.

California and eight other states, as well as Washington, D.C., have legalized all adult use of marijuana. An additional 20 states permit marijuana for medical use.

But even as states legalize, marijuana has remained a risky and unstable business because of federal law making it illegal. Concerns about federal law enforcement seizures have inhibited most lenders from working with marijuana businesses. And investors have also proceeded cautiously.

“If you are in the marijuana business … you can’t get a bank loan or set up a bank account because of concern over the conflict between state and federal law, but you can look here and find the right expert” Gardner said at a news conference Thursday to unveil the new bill. “We need to fix this. It is time we take this industry out of the shadows, bring these dollars out of the shadows.”

He called it a “public hypocrisy” that the firms are expected to pay taxes yet are barred from participation in the financial system.

A lifting of the federal prohibition also would bolster efforts to create uniform testing and regulatory standards for marijuana, and potentially free scientists to pursue research into the medical uses of marijuana.

Trump’s support could potentially have a major impact, providing political cover for Republicans who worry about being tagged as soft on drugs. Still, the proposal faces a tough road in Congress.

Even though most lawmakers now represent areas where pot is legal for at least medical use — and public opinion polls show majorities of Democratic and Republican voters nationwide favor legalization — congressional leaders have shown little appetite for loosening restrictions. The House is blocking the District of Columbia from permitting sales of recreational pot, even after its voters chose to legalize. A 2014 budget amendment that protects medical marijuana businesses from Drug Enforcement Administration raids is perpetually under attack. An epidemic or a pandemic like the COVID-19 FORCES MISSOURI’S MEDICAL MARIJUANA PROGRAM TO RAPIDLY MATURE.

“It faces tremendous head winds,” John Hudak, a marijuana policy expert at the Brookings Institution in Washington, said, referring to the Gardner-Warren bill.

Trump said he is likely to support the federal legalization effort despite a warning against it from a coalition of narcotics officer groups.

“We urge you to see through the smoke screen and reject attempts to encourage more drug use in America,” they wrote in a letter to Trump Thursday.

The marijuana industry continues to be whipsawed by mixed messages from the administration.

In January, the Justice Department sent pot businesses into a panic by rescinding an Obama-era policy that restricted prosecutors from targeting sellers who operate legally under state laws. Sessions warned at the time that any pot business could find itself in the crosshairs of prosecutors — regardless of whether marijuana was legal in their state.

The move enraged Gardner, who said the administration had earlier given him assurances that there would be no such raids, at least in his state. At Gardner’s behest, Trump in April ordered an abrupt retreat from the announced crackdown. Trump made the order without even consulting Sessions, a sign of their tense relationship.

But prosecutors did back off. During this administration, there have apparently been no federal raids or seizures of pot companies for sales that are legal under state law.

“Remarkably little, if anything, has changed,” said John Vardaman, a former Justice Department attorney who helped draft the Obama-era rules, known as the Cole memo, after former Deputy Atty. Gen. James M. Cole, who issued it. “Almost every U.S. attorney in states where marijuana is legal has decided to apply the same principles as the Cole memo,” said Vardaman, now an executive at Hypur, which sells banking compliance software to marijuana companies.

Banking is the area in which the Gardner bill could most help pot companies.

The Senate proposal, and a companion bipartisan measure in the House, would amend the Controlled Substances Act so that its marijuana provisions do not apply to any person or business that is in compliance with state laws. To put bankers at ease, it specifies that such marijuana sales would not be considered trafficking and do not amount to illegal financial transactions.

“The very people you want involved in this market are the ones who have been most reluctant to get involved because of the banking issue,” said Vardaman. “If you address that, you would have enormous beneficial effects for the industry.”

While Trump’s comments were welcomed by marijuana activists, they remain on edge, especially because of Trump’s spotty record at actually pushing legislation through Congress.

“We have seen this president voice his support for a lot of things related to cannabis, but he has done absolutely nothing to move legislation,” said Hudak. “This is just more empty rhetoric from a president who is vague on this issue.”

Gardner is hoping he can persuade more of his conservative colleagues to join the crusade by framing the issue as one of state’s rights. Several Republicans, including Reps. Dana Rohrabacher of Costa Mesa and Don Young of Alaska, are demanding an end to federal marijuana laws that intrude on the states. Their movement is slowly growing in Congress.

“This is a chance for us to express that federalism works,” said Gardner, who like some other Republicans was not a proponent of marijuana but took up the cause after his state’s voters endorsed legalization, “to take an idea that states have led with and provide a solution that allows them to continue to lead.”

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What would happen if one or more people approached a law firm to generate a “generic letter” that anyone could take to another law firm to get them to send it to a prescriber, group of prescribers and/or their corporate employer’s legal dept.

The letter would have the general purpose to be sent by those pts whose prescriber is cutting or eliminating their pain management meds. It is common knowledge the physical/mental consequences of under/untreated pain as per this table

https://www.pharmaciststeve.com/?p=20995

Besides of what is on this table, we all know that suicides of these chronic pain pts are on the increase.

The letter should address the complications of the pt’s comorbidity health issues and adverse affects on the pt’s quality of life.  Suicide should not be listed in the letter maybe just subtly implied of what might happen.  No one wants such a letter to cause the pt to get a 72 hr involuntary admission to a mental health facility.

However, complication of the pt’s comorbidity issues because of decrease/eliminated pain management could lead to a premature death of the pt.

The pt’s physician should be fully aware of the potential adverse health issues that the pt may experience and those adverse outcomes could be considered a DIRECT RESULT of the prescriber’s action(s)… including the demise of the pt from withdrawal issues.

Once such a letter is generated, it would be available to all chronic pain pts at no charge.  In turn, these pts could take the digital letter/text to local attorney or legal aid group.  This process should keep the pt’s out of pocket expense to a minimum.

Have the attorney to send the letter – via certified mail – to the prescriber and the legal dept of the corporate employer.

If the pt dies prematurely, then the surviving members of the family has documentation to have the prescriber charged with a number of crimes that contributed to the pt’s death.

Right now, no one is looking for a link between the actions of the prescriber and the pt’s death… if a pt dies, without any of this forewarning of all parties involved… the pt’s death will be listed as “opiate related death” because the pt’s toxicology shows a opiate in their system and/or the cause of death well be “natural causes” from the complication(s) of their comorbidity issues.

The DEA is charging prescribers with the OD deaths of one or more pts that the prescriber may have seen as much as one year back and may have written a single prescription for a opiate.

Today, healthcare professionals ( prescribers, pharmacists, & others) have not experienced any consequences for their actions and/or denial of care.  Mainly because it is claimed that 90% of chronic pain families are struggling financially and cannot afford legal services.

If a prescriber has told the pt that they are going to be reduced until they are off opiates… what is a prescriber going to do if they receive this letter … reduce the pt’s pain meds ? They are going to do that anyway.

If the prescriber discharges the pt because of the letter, then the prescriber has set themselves up for complaints being filed with the state medical licensing board for pt abandonment, retaliation and probably several other legal issues and if the pt is on Medicare or Medicaid then complaints filed with 800-MEDICARE.

If the prescriber is doing this to all of his/her pts then there is possible issue that could generate a class action…. especially if the prescriber is an employee of a larger corporation.

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FDA Warns About Dangers of Epidural Steroid Injections for Back Pain

www.fibrowomen.com/fda-warns-about-dangers-of-epidural-steroid-injections-for-back-pain

The Food and Drug Administration has just issued what’s called a “Medwatch Alert” warning that Epidural steroid injections or “ESIs” for back and neck pain can be extremely dangerous. The alert says: “Injection of corticosteroids into the epidural space of the spine may result in rare but serious adverse events, including loss of vision, stroke, paralysis, and death.”

Epidural steroid injections – and catastrophic injuries from them – were the subject of my debut investigation for The Dr. Oz Show almost exactly a year ago. (You can watch the video here and read the web article here.) The epidural space is an area between the spinal cord and the bony structure of the spine.

Our investigation revealed that the steroids – called corticosteroids – used for epidural injections are not even FDA approved for this purpose and yet ESIs are done nearly 9 million times a year, according to an analysis by Dr. Laxmaiah Manchikanti.

In addition to informing the public via its Medwatch Alert, the FDA said, “We are requiring the addition of a Warning to the drug labels of injectable corticosteroids to describe these risks.”  Injectable corticosteroids include methylprednisolone, hydrocortisone, triamcinolone, betamethasone, and dexamethasone.

In 2009, the FDA convened a group to study the safety of some types of epidural steroid injections. In its new notice, the FDA said that group’s recommendations still are not ready and will be released when they are.

Dennis Capolongo of the EDNC, a group that has been campaigning against epidural steroid injections for years, called the FDA’s new warning “bitter sweet” because it did not go further.  Capolongo wants the FDA to go beyond telling doctors that injecting steroids into the epidural space COULD have severe side effects and instead state that they MUST NOT do it.

In February of this year, Australian and New Zealand health authorities came out with exactly that stronger language, stating that steroids like this, “MUST NOT be used by the intrathecal, epidural, intravenous or any other unspecified routes.” The South African government issued similar warnings, according to Capolongo.

Since the FDA is still actively studying these procedures, it will be interesting to see if the agency takes any further steps. If and when it does, you can bet I’ll pass the information along.

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Pam Bondi sues makers of opioids, says it’s time they pay for the pain they caused

https://www.miamiherald.com/news/state/florida/article211185174.html

TAMPA

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https://www.wate.com/news/local-news/pain-patients-cry-out-amid-opioid-epidemic/1581698996

KNOXVILLE, Tenn. (WATE) – While thousands of people are dying every year from opioid overdoses, those who depend on pain management argue that no one is talking about them.

Debilitating pain has been a part of Raymond Kuykendall’s life for nearly 30 years. The simple act of bending over to feed his dog is difficult. 

He was a laborer and fell from a bridge when the Interstate 275/Interstate 40 flyover was under construction 30 years ago. It took more than a year before he could sit in a chair without being in a full body cast.

“I shattered my whole left side. It was like pick up sticks on the X-ray,” he said.

Kuykendall broke his back, lost a kidney, and suffered other internal injuries.

“They told my family for three days that I wouldn’t live,” Kuykendall said.

To relieve his pain, Kuykendall was prescribed by his doctor a cocktail of opioids, which became stronger and stronger every year. In July of this year, when Tennessee enacted one of the strictest opioid policies in the country, Kuykendall said his quality of life changed as his daily meds were cut back.

Kuykendall says he takes 30 milligrams of oxycodone four times a day, which is 60 milligrams less per day than what he used to take.

“It’s affected me in everything. Doing house chores, just getting through in life,” he said.

Steve Glass shared a similar story in August. He can’t get out of a chair without pain. Disabled for 27 years following a series of back surgeries, Glass has chronic, constant pain which affects him emotionally, physically and psychology. 

To ease his debilitation, his doctors prescribed 15 mg of oxycodone and 10 mg of Oxycontin.

“This is one third of what I was taking before the cuts in the medicine of everyone,” he said. “My quality of life has crashed.”

With changes in his pain management, Kuykendall believes he’s paying the price for the abuse by others.

“I just don’t see where it is my fault that people are overdosing on opioids, when I take mine the way I’m supposed to,” he said. “I’m the one that got cut back on my pain medicine because of all the other people out here doing stuff they shouldn’t be doing.”

More Tennesseans died last year from drug overdoses than from automobile crashes. Department of Health records show 1,776 Tennesseans died from drug overdoses in 2017. Prescription opioids are the most common drugs associated with overdose deaths which is one of the reasons why Tennessee has cracked down on the opioid epidemic.

However, Steve Glass believes those with chronic pain, due to their serious health issues, should be exempt from strict legislation. Raymond Kuykendall holds the same opinion. 

“I don’t think the government ought to be the one to dictate to the doctors what they can prescribe,” said Kuykendall.

“We’re dying, like the people who are overdosing. It’s just slower,” said Glass.

Just a few weeks ago, the Food and Drug Administration enacted what’s called the SUPPORT Act. In the legislation, the FDA supports developing drugs to treat pain that are not addictive, as well as the need to better understand the safety of existing opiods, to treat those millions of people with chronic pain. 

Those who fit that category say living with unrelenting pain and not receiving the care they deserve, needs to be addressed. They argue the pain crisis has been ignored too long due to the opioid crisis. 

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