Author Archive

Beauty at What Cost?

December 20th, 2010. By janem

According to the pharmaceutical company Allergan Inc., Brooke Shields and I are suffering from “Inadequate Eyelashes”. Now I must convince my doctor to prescribe Latisse so I will be able to face humanity and not be a victim of yet another physical shortcoming and low self-esteem that obviously is the result of not having full eyelashes. (Did you know that women who become reliant on cosmetic enhancers tend to have low self-esteem, and are at risk of using products obsessively to make themselves feel good?)

I don’t know about you, but it’s a real struggle to keep up with appearances, and to keep one step ahead of potential lawsuits. For instance, all those Dow Corning lawsuits years ago make it difficult for a gal to get a breast implant these days. And my dentist just informed me that he can no longer offer Botox treatments after my teeth whitening because a few people died, apparently due to the Botox. Just the other day my hair stylist said she isn’t stocking Brazilian Blowout products anymore because of some formaldehyde scare.

Honestly, what a bunch of cowards.

All joking aside, cosmetic medications could potentially do serious harm to your health in the long run. Even though a medication like Latisse is relatively safe, no one knows what the long-term side effects are. These products certainly aren’t tested for years and years in clinical trials. So, it’s likely just a matter of time before someone files a Latisse lawsuit– before someone suffers serious side effects from the med. Allergan has already been issued a warning by the FDA because its ads are misleading and they “omit and minimize risks associated with Latisse.” Side effects include permanent iris pigmentation (I guess that’s OK if you want those baby blues to become brown eyes—forever), and here are a few more:

• Lid pigmentation, or a darkening on the skin of the eyelid that is also likely to be permanent
• Hair growth outside of the treatment area, including the cheeks, forehead or any other skin surface that Latisse touches
• Intraocular inflammation, characterized by redness and irritation, blurred vision, eye pain and sensitivity to light
• Bacterial keratitis, or a serious infection of the cornea that can be caused by misuse of the product.

Latisse and Botox share a similar history in that both drugs were more or less stumbled upon; and Allergan (they also share the same drug maker)  unexpectedly found huge commercial potential in their products if the FDA were to approve them off-label. Botox was originally approved in 1989; the FDA later approved (in 2000) Botox for treatment of cervical dystonia in adults to decrease the severity of abnormal head position and neck pain; then it was used to treat eye conditions and excessive underarm perspiration. Now Allergan faces a number of lawsuits over its anti-wrinkle treatment—all the suits allege that harm was caused by Botox spreading from the injection site, and include some element of off-label use of the drug.

In an article last year, The Wall Street Journal said that as much as one-third of Botox sales are from uses for which it’s not been approved by the FDA. And Latisse is likely going the same way. Some doctors are concerned that Latisse, which is a glaucoma medication, will be available in spas and clinics nationwide, regardless of whether a doctor approves the prescription.

Of course this would make Allergan very happy. Meanwhile, I’m going to buy a new tube of mascara and eyelash curlers.

Posted in Emerging Issues | 16 Comments »

The Darvon Recall—What Took So Long?

December 8th, 2010. By janem

Darvon is over 50 years old—long enough to do some serious damage. Reports of adverse events, such as destroying people’s lives, were pouring in since 1979—back in the day when Ralph Nader was banging on FDA’s door to ban the painkiller, when Darvon was cited in 589 overdose deaths in 23 US cities. Nader’s Health Research Group called Darvon the “deadliest prescription drug in the United States” and Sidney Wolfe, M.D., director of Public Citizen’s Health Research Group, said “Propoxyphene [Darvon] has one of the worst benefit-to-risk ratios I have ever seen for a drug,” yet the FDA did nothing.

What took the feds so long to recall Darvon and its evil cousin Darvocet? Rather than a recall, FDA just required that the manufacturer conduct an “educational campaign” to limit Darvon’s use. As if that would do any good: pharmaceutical companies aren’t educators, they are profiteers. Why didn’t the FDA slap a black box warning on the drug in ’79? I wonder if any of those decision-makers have any pangs of guilt, knowing how many OD’s they could have prevented. And now Darvon side effects have become as serious as a heart attack.

It wasn’t until a recent study confirmed that Darvon and Darvocet were associated with heart problems that the meds were yanked from North America’s shelves (the UK and other countries were way ahead—the UK started withdrawing Darvon in 2005 and again in 2009).

I think that one reason the FDA sat on it laurels for so long was because up until a few years ago, most people were prescribed Darvon for depression and overdoses were regarded as accidental suicides. Nothing wrong with the drug, just the patient. Then it become popular as a pain killer; so popular that by 2009, 10 million people had been prescribed some form of Propoxyphene, either Darvon or Darvocet.

Guaranteed there will be a lot of lawsuits now. And perhaps those families who lost a loved one to an “accidental overdose” (like victims of the Fentanyl Patch) will also come forward.

Tags: darvocet, darvon, darvon_darvocet
Posted in Emerging Issues | 7 Comments »

What Exactly does Insurance Cover? Maybe More than you Think

November 24th, 2010. By janem

Understanding the intricacies of vehicle insurance puts my brain into a fog. Fortunately, James Bedard, someone I recently interviewed regarding his legal malpractice complaint, shares some insight. “I wonder how many people suffer financially because they are not aware of what coverage they have,” says James, “and the insurance company sure isn’t telling them.” (Unfortunately, James lost his case but he isn’t giving up.)

James Bedard: Insurance can be very confusing and I think that most people do not understand what they do have in coverage.

Under many state laws, there are two types of insurance coverage.

• Uninsured (UM) means the other party has no insurance so you have to carry that UM insurance yourself.
• Underinsured (UIM) means you don’t have enough insurance.

For instance, if someone hits me and they only have minimum insurance (that the state requires), but my injuries exceed that amount, I can claim my own coverage for the difference. In 2001, someone ran a red light and I was injured. He only had $50,000 coverage but I had $1 million coverage on my truck; I was able to collect $50,000 from his insurance company and my attorney filed a claim with my employer’s insurance company for $950,000.

UM and UIM Coverage

Most every state makes it mandatory for everyone to have UM and UIM coverage. So every driver is covered if they are in an accident caused by a driver who is either not insured or doesn’t have enough insurance.

As well, most states require that you have to have the minimum coverage of $25,000/50,000/10,000, which means $25,000 for injury to one person, $50,000 for two or more people and $10,000 for property damage, e.g., car, house, etc.

When you take out your coverage it is automatic that your coverage for uninsured (UM) and underinsured (UIM) is the same. So if a person who hits you has no insurance, you are covered for the $25,000/50,000/10,000.

Say your coverage is $100,000/300,000/100,000 and you are hit by a person who only has the 25,000/50,000/10,000; your car was totaled and it was worth 50,000 dollars. You could collect the $10,000 for property damage from the other party’s insurance and fall back on your insurance for up to $90,000, which is the difference. And your car would be totally covered.

On the other hand, say you had the same coverage as the party that caused the accident. All you would receive is their $10,000 because there is no difference from your insurance policy and their policy.

It seems complicated but it really is quite simple. Most States allow a person to reject the higher UM and UIM coverage and lower it to the minimum coverage.

For example, the 100,000/300,000/100,000 coverage I had meant that the UM and UIM coverage was the same. But you could save a few dollars and reject that coverage and reduce it to 25,000/50,000/10,000. So if you hit someone they would be covered for the higher amount but if they hit you and were not insured, you could only fall back on the 25,000/50,000/10,000.

Why anyone would want to insure themselves and their family for less then the general public makes no sense–because you don’t save that much.

Insurance Incidents

My friend asked me how she was going to get her car fixed, because the person who hit her had no insurance and did not have anything to sue for. I told her to call her agent and file a UM claim. She said her coverage was $25,000/50,000/10,000 and I told her the last figure of $10,000 was for property damage–the maximum she could recover for her car. She called me later and thanked me.

My son’s friend got his hand caught in another friend’s car door and he could not use his hand for work. He worried how he was going to pay his bills. I told him to call his agent and tell him he wanted to file a Personal Injury Protection (PIP) claim, which is mandatory in most states. He called me later and thanked me–he was getting $900

a month for lost wages and up to $4500 for medical expenses.

A little girl and her mother were recently in a car accident. She was worried that her personal insurance wouldn’t cover the accident and pay her bills. Again, I told her to contact her agent and file a liability claim for their injuries and the PIP for her lost wages. Her little girl would suffer permanent facial scars and I told her not to settle for less then her maximum coverage, which was $25,000. She received all of it.

Truck vs Automobile and State vs Federal Claim

Most states also have statutes that define the words used in the statutes. For example, Kansas statute 40-284 establishes what your ” Automobile Liability ” insurance will be for the UM and UIM

State statute 40-298 and statute 8-126(x) define an ” Automobile ” as a passenger vehicle designed primarily to carry 10 or fewer passengers, which is not used as a truck.

Statute 40-284 also mentions a ” Motor Vehicle ” State statute 40-276 defines ” Motor Vehicle ” as in statute 40-284 to mean a vehicle of a passenger or station wagon type, that is not used as a public livery conveyance for passengers, not rented to others and any four wheel motor vehicle with a load capacity of one thousand five hundred pounds (1,500) or less, which is not used in the occupation or business of the named insured.

This makes it very clear that statute 40-284(c), which is used to reject and reduce the UM and UIM coverage, is not meant for trucks or any vehicle or truck used in the occupation or business of the person, who is insured. This statute is for cars driven by the citizens of the State of Kansas.

But insurance companies use this statute to reject and reduce the coverage on large trucks, used in the business of the named insured. As you can clearly read, that is not allowed. The definitions I have given you above are the exact definition of those statutes and every State has a similar statute.

You would not believe how many cases are lost to the insurance companies, simply because attorneys do not know the regulations/laws of the FMCSA and the PHMSA.

In my research I found a case where a driver had his little girl with him and a pickup caused the truck to crash. The little girl had injuries over $200,000 and their attorney filed a State UIM claim because the pickup did not have enough insurance coverage.

When they filed on the truck insurance, the insurance company came up with a rejection to the coverage and reducing it to $50,000. So they got nothing.

I researched the case and could find no rejection besides the form the insurance company submitted. I also found that the little girl was covered under the public liability of the truck. I even confirmed it with the Federal Motor Carrier Safety Administration (FMCSA). So she should have been covered for up to $1million coverage.

But because their attorney did not know the FMCSA regulations that the truck was under and then filed a State UIM claim (it should have been a federal claim), they lost the case. Unfortunately, when I checked it out, the statute of limitations had run out on their case. So it was all over, insurance company wins.

What You Can Do

Clearly, it is up to you, the insurer, to be pro-active. Not all insurance companies are created equally and not all insurance companies act in your best interest. It’s worth the time to study your insurance coverage and get good legal advice before you file a claim. And please take James’s advice: ” Always ask your attorney why he does or doesn’t do this or that…”

Tags: Car Accident, Car Insurance, Insurance
Posted in Pleading Ignorance | 3 Comments »

Happy Thanksgiving Unum

November 24th, 2010. By janem

During more than six years at LawyersandSettlements I have interviewed close to a thousand people who have suffered an injury or injustice, from bad drugs and medical devices to labor law violations. Many people I talked with brought tears to my eyes and sometimes we cried together. Among the saddest cases I heard were  those people whose lives were ruined because they were denied disability benefits from Unum insurance company, also known as First Unum and UnumProvident. Our conversations left me feeling frustrated and angry, and useless. All I could do was tell their story.

As for the name changes, the company now calls itself Unum, in an effort to make the public forget Unum Provident’s past bad faith practices. But the rebranding ain’t working for Unum’s policyholders, although it might be working for Unum: according to the Associated Press, the company’s revenue increased approximately 1 percent from last year to $2.53 billion. So why can’t the biggest insurance provider share some its wealth with those who are entitled to it?

Unum also posted an operating income of $204.7 million, up four percent from last year. To me, that translates to a lot of employees taking home fat paychecks, thanks to the company denying policyholders disability benefits.

One interview I remember that took place about four years ago still upsets me. Gladys was about 60 years old; her husband had recently passed away, the kids were long gone and she had become disabled. Because Unum refused her long term disability benefits, Gladys’s home went into foreclosure and she was counting on social security benefits, but they hadn’t kicked in.  I interviewed her from a Motel 6, where she was living a day-to-day existence, not knowing where she would stay tomorrow.

Sadly, there a lot of victims like Gladys; people who worked hard all their lives, they or their employers paid their insurance premiums for years and when tragedy strikes, they are left out in the cold. More often than not, their former employers have no knowledge of Unum denying them. Certainly Unum isn’t going to tell its clients that they haven’t acted in good faith.  (One man I interviewed actually notified his former employer, Coca-Cola, and he was able to win an appeal, but I think Jimmy’s case is rare. )

It’s ironic that Unum was recently recognized for donating millions of dollars and volunteer hours to schools, food banks, education, the arts, as well as health and wellness projects, while at the same time it is still employing underhanded tactics to deny, deny.

I guess their marketers figure that’s the way to attract more business and sell more policies. It certainly isn’t the way to keep more policy holders. Happy Thanksgiving, Unum. May you choke on your turkey wishbone.

Tags: Insurance, Unum
Posted in Emerging Issues | 2 Comments »

Caffeine Crackdown on Alcoholic Energy Drinks

November 18th, 2010. By janem

Alcoholic energy drink makers and no doubt hoards of 20-somethings won’t be happy with the FDA’s warning yesterday to remove caffeine from their products. Four companies, including Four Loko maker Phusion Projects have 15 days to come up with a new recipe or remove their products from store shelves. Whatever next, caffeine ban on “healthy energy drinks“? Heaven forbid…

It’s a good indicator that some of these drinks are harmful when they are referred to as “witches brew” and “blackout in a can”. (AP Photo/Paul Sakuma)

The agency’s decision to ban the combination of caffeine and alcohol in the products is mainly because the caffeine can “mask cues” that drinkers may use to determine how intoxicated they are. “This means that individuals drinking these beverages may consume more alcohol — and become more intoxicated — than they realize,” the FDA said.

Gregory Conko of the Competitive Enterprise Institute, which is a nonprofit group that supports limited government, said the FDA has gone too far. Conko said that the studies government officials used to make their decision are based on mixed drinks, not manufactured drinks, so their research is based on a slightly different product. Conko believes that people can responsibly drink a combination of alcohol and caffeine, but it would appear that his views are outnumbered. From lawmakers to doctors to concerned parents, the caffeine crackdown has been a long time coming.

According to the Centers for Disease Control and Prevention, two leading manufacturers saw their sales increase by 67 times between 2002 to 2008. (These companies will likely take a deep dive after yesterday’s decision, and no doubt  to Conko’s chagrin.)

2002: Wasn’t it around this time that teenage binge drinking started hitting the news? And incidents of college students winding up in hospital from car accidents to alcohol poisoning?  The CDC has the statistics:  People who drink alcohol mixed with energy drinks are three times more likely to binge drink than those who don’t mix the two substances together.

And there is more to back up the FDA’s decision. The Journal of Addictive Behaviors (April 2010) published a study that found people who drank alcohol mixed with energy drinks were three times more likely to leave a bar highly intoxicated, and four times more likely to try to drive, than bar patrons who had drinks with no caffeine. Recently in the journal Alcoholism: Clinical & Experimental Research, a study found that high consumption of energy drinks was associated with alcohol dependence and heavy drinking.

Aaron White, a health scientist administrator at the National Institute on Alcohol Abuse and Alcoholism, comments succinctly on the FDA’s decision: “I think the move [by the FDA] was made in order to protect the public from what could be a real recipe for disaster.”

No doubt the makers of “healthy energy drinks”, such as FRS, are concerned about this caffeine crackdown. Health Canada is already reviewing new recommendations on energy drinks. A report is soon to be issued that focuses on the safety of energy drinks without alcohol, which are considered to be natural health products and have different rules than food products. Another report looks at caffeine in all foods, including drinks that mix caffeine with alcohol.

Perhaps the FDA will follow Health Canada’s new rules, but “healthy energy drink” manufacturers will likely have a few more years to dupe the public into buying their products loaded with caffeine.  Back in 2005, the FDA warned manufacturers and advertisers of alcoholic energy drinks not to imply that consumption of the products will have a stimulating or energizing effect, but the warning fell on manufacturers deaf ears, which is evident through manufacturer’s aggressive marketing campaigns for their products.

“Energy drinks that combine alcohol with caffeine hardly seem healthy – and could be hazardous. These alcoholic energy drinks foster the illusion of alertness, but in reality impair – leading to car crashes, assaults and other violence and injury.”

Although this statement made a few years back sounds like fire and brimstone, a recent study found that young and underage drinkers who combine alcohol with caffeine, are more likely to suffer injury, be the victim of sexual assault, drive while intoxicated, and require medical attention than drinkers who consume caffeine-free beverages. Not to mention the needless burden to the health system.  This time, the FDA has my vote.

Tags: alchoholic energy drinks, caffeine ban, food supplements, healthy energy drinks
Posted in Complaints/Comments | No Comments »