Another Court takes MetLife to Task for its disability reviews
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Court rules that case brought within 2 years in another state satisfied Virginia's statute of limitations
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Here is an unusual situation:
The plaintiff was injured in Virginia in a car accident with a resident of Ohio. He filed suit within 2 years in Ohio and he filed an identical suit here in Virginia after two years had passed.
After much legal wrangling, the Virginia court said that the lawsuit filed in Ohio (even though that Court ordered the case transferred to Virginia) was good enough to stop the running of the statue of limitations.
In this case an action was filed in the Ohio court one day before the running of the statute of limitations. The fact that the original action was filed in another state, and perhaps in an improper venue, is of no concern to this Court. The plain language of the tolling statute contemplates "any action" commenced within two years. Code § 8.01-229(E)(1). The commencement of the Ohio action falls within the statute.
This action was also brought within the remaining period allowed by the statute of limitations once the original action had ended, in this case one day. The fact that this action was commenced before the tolling period ended is not of consequence.
Thornton v. Estes Express Lines, 15 Cir. CL0800086500, 77 Va. Cir. 455 (2009)
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Court Throws Out Case After Lawyer Error
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Court takes Prudential Insurance Company to task in disability claim.
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Posted on Mar 24, 2008
Graham Harrison, suffered from Tourette Syndrome which prevented him from working on a full time basis. He applied for partial disability benefits under a disability insurance policy his employer had with Prudential Insurance Company of America. His treating physician, a neurologist and specialist in Tourette Syndrome had recommended that he consider reducing his work schedule to less than full time to accommodate his condition which have led to chronic anxiety, a disrupted sleep pattern and agitation. His doctor felt that a four day work week with a mid week break would benefit him immensely.
Prudential denied the request for benefits. Prudential's position was that since he had suffered Tourette's Syndrome for many years his records did not document a significant recent change that would warrant a change in his work patterns. Prudential also felt that if he could work four days there was no reason that he could not work five days in a week.
At first Prudential relied on the opinion of its "medical director", Jill C. Fallon, M.D., a doctor who was Board Certified in occupational medicine but had absolutely no expertise in neurology or Tourette's Syndrome. This doctor did not even examine the claimant.
Prudential also looked at the wrong definition of disability in denying the claim.
Mr. Harrison appealed the denial of benefits and included additional reports from his well qualified physicians. On appeal, Prudential showed the file this time to Albert Kowalski, M.D. another one of its employed physicians. Not only did Dr. Kowalski not have Board Certifications in neurology or psychiatry, he had absolutely no experience in the treatment of Tourette Syndrome and indeed had not had any clinical practice since 1987. Dr. Kowalski did not examine the claimant. Despite the lack of qualifications and any current experience in actually seeing patients, Dr. Kowalski was of the opinion that the claimant's condition should have improved over time.
On the basis of Dr. Kowalski's opinion, Prudential denied the claim. In denying the appeal Prudential once again quoted the wrong definition of disability. The plaintiff again appealed and this time consulted with yet another expert in Tourette Syndrome. He was evaluated by Oliver Sacks, M.D. a clinical professor of neurology at Albert Einstein College of Medicine and an adjunct professor of neurology at the New York University School of Medicine. Dr. Sacks had authored numerous books and articles on Tourette Syndrome. It was Dr. Sacks' opinion that Mr. Harrison could maintain his effort and function very effectively for only two days at a time and then must take a break of a day to recover. He cannot function on a "standard" five day week. On the basis of this letter Prudential reversed its original decision and awarded benefits to the plaintiff. Prudential however continued to misstate policy provisions and indeed quoted language that appeared nowhere in the plan.
Two months after approving the claim Prudential began re evaluating the claim. This time Prudential took the position that the plaintiff's disability was caused at least in part by a mental psychoneurotic or personality disorder and that benefits were limited to 24 months. Prudential advised the claimant that his claim would most likely terminate the next month.
The problem with Prudential's denial of benefits this time was that there was no 24 month limitation in this policy.
Prudential also referred the file to Stephen N. Gerson, M.D. Dr. Gerson was Board Certified in psychiatry and geriatric psychiatry but listed his major professional activity as "administration." There was no evidence in the file that Dr. Gerson had any experience in the treatment of Tourette's Syndrome. He did not examine the claimant. It was Dr. Gerson's opinion that the various treating physicians and the claimant himself were simply making a "preference" for not working a five day work week. Shortly thereafter Prudential terminated benefits yet again.
Mr. Harrison filed suit under ERISA.
The court reversed Prudential's denial. The court found that "In the worst light, such conduct [misquoting policy provisions] indicates a conscious attempt on the part of Prudential to manufacture a reason for denying plaintiff benefits."
The court also found that the decision to terminate benefits was not supported by substantial evidence. The court said that Prudential had ceased on one piece of information that one of the doctor's had relayed to it to terminate benefits. The court found that Prudential had not relied on any new information to terminate benefits after it had previously approved benefits on the same information. The court also was critical of Prudential for using doctors who had no expertise in Tourette Syndrome and who never examined the claimant.
Fairfax, Virginia attorney Ben Glass represents doctor, dentists, lawyers and business executive in long term disability benefit claims.
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Court was Wrong to Dismiss Case-Now the Parties Wait Longer for Justice
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Posted on Mar 04, 2008
A typical tactic used by Virginia medical malpractice insurance companies to defend claims ateries are mistakenly clamped or sutured or cut in surgery is to say "well, the anatomy was abnormal," and that's why it happened.
The Virgnia Supreme Court recently held that a trial court was wrong in dismissing a case where there was conflicting evidence that there was abnormal anatomy.
Clifford Lewis Fanucci, Sr., died after undergoing hand-assisted laparoscopic surgery for a cancerous growth on his kidney. Daniel Mark Hoffman, M.D. clamped the right renal artery instead of the left renal artery during surgery. When he discovered his error, he unclamped the artery but it tore, killing his patient.
There was conflicting evidence at trial about whether Fanucci's anatomy was unusual. Doctors who came in to repair the torn right renal artery that they found nothing abnormal. The pathologist who did the autopsy said he found nothing unusual about the position of the right renal artery, either.
The only doctors to testify that there was anything 'unusual' about the right renal artery were the defendant and his partner!
The Supreme Court reversed the decision of the trial court and ordered a new trial.
Comment from Virginia Medical Malpractice Attorney Ben Glass: the actions of the trial judge are frightening and demonstrate just how difficult a jurisdiction Virginia is for medical malpractice cases. As I read the opinion, there was basically guess-work on the part of the defendant and his partner as to how or why he managed to clamp the wrong artery. There was no real 'evidence' on this issue. In fact, the only real 'evidence' from two indepedent doctors who actually saw the right renal artery was that the anatomy was normal. To me this case is not even close and there is no way the judge should have stopped the jury from making the decision.
This was enourmously expensive for both parties. Even if the judge felt the case should not have been decided by the jury he should have allowed them to decide it later. Then, he could have reversed the jury's decision, but at least the Supreme Court could have reinstated the jury's verdict.
The judge was wrong.. now the parties wait at least another year, spend another $$75,000 or so to retry the case.
Doctor Who Failed to Do One of Two Promised Procedures Has to Pay, Says Virginia Supreme Court
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Virginia Supreme Court Affirms Verdict for Doctor
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Posted on May 08, 2009
In this wrongful death action, the question was whether the circuit court erred in denying a jury instruction proffered by the plaintiff. Because the instruction was not a correct statement of the law, as it removes a question of fact from the jury, the Supreme Court of Virginia concluded that the circuit court did not err in refusing to give the instruction.
NANCY WHITE SMITH v. BYUNGKI KIM, M.D., ET AL.
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Vote for judge Michigan Supreme Court in 2010 election - Michigan no-fault insurance lawyer
As Michigan personal injury lawyers we this time of year contacted by family members, friends, customers and colleagues questions, who are to vote the best judges for the upcoming election. While most people have party loyalties and understand the issues in the general election, they have often have no idea about choice in judicial elections. This is not surprising for us, because it really only lawyers who are familiar to the judges and the service lists.
In the coming November 2nd Michigan 2010 election, their right to vote for two judges on the Supreme Court of Michigan will sit. Profound implications have their choice of the judges on your rights over many decades, including the strict Michigan laws. We believe that the following judges best suited and the brightest legal minds on the Michigan Supreme Court.
VOTE FOR JUSTICE ALTON DAVIS
Current Michigan Supreme Court Justice
Experienced - 21 years as a judge
Pro-justice
Tough on crime
He fought for the rights of families
Vote for Judge DENISE LANGFORD MORRIS
Judge of the circuit court for 18 years
Longest serving woman judge in Oakland County
Pro-justice
Tough on crime and drunk drivers
Hard against sex offenders
Remember, your "straight party" vote insufficient. Ask for Justice Davis and judge of Denise Langford Morris vote safely, you are cast down to the non-partisan part of the vote in the judicial elections!
Their ability to choose your judge is one of the greatest rights which are as a democracy. We hope that you will participate in the electoral process through your voice have made. Please forward this important information to your friends, family members and colleagues as well.
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Another court MetLife takes to task for his disability evaluations
Court was wrongly dismissed case now the parties justice wait longer
Posted on the Mar 04, 2008
Companies to defend claims of Ateries be clamped incorrectly a typical tactic of Virginia medical malpractice insurance or sewn or cut in surgery is to say, "the anatomy was good, abnormal" used, and that is why it is happening.
The Virgnia Supreme Court recently held that a trial court incorrectly was the dismissal in a case where it contradictory evidence, that there were abnormal anatomy.
Clifford Lewis Fanucci, SR., died after a hand-assisted laparoscopic surgery for a cancer growth on his kidneys. Daniel mark Hoffman, MD clamped right renal artery instead of the left renal artery during surgery. When he discovered his error he unclamped the artery, but it tore his patients kill.
There was conflicting evidence at the trial about whether Fanucci of Anatomy was unusual. Doctors, who came to repair torn right renal artery, which they nothing abnormal found. The pathologist who did the autopsy said, that it unusual either on the position of the entire renal artery, found nothing.
The only doctors to testify were the defendant and his partner that there was nothing unusual about right renal artery!
The Supreme Court reversed the decision the trial court and ordered a new procedure.
Comment by Virginia medical malpractice lawyer Ben glass: the actions of the trial judge are frightening and show a jurisdiction is just how difficult Virginia for medical malpractice cases. As I read the opinion, there were terminals in the reason guess work of the defendant and his partner, the wrong artery how or why he made it. There was no real "evidence" on this issue. In fact, was the only real "evidence" from two independent doctors, the actually right renal artery saw that the anatomy was normal. This case is not even close to me and there is no way the judge the jury of the decision should have stopped.
This was Enourmously expensive for both parties. Even if the judge that the case from the jury should have decided that he they later decide it should have allowed felt. Then could he reversed, that the jury could at least but the Supreme Court the jury judgment have reinstated.
The judge was wrong... now the parties wait for at least another year, spend a further $$ 75,000 or so, to repeat the event.
Court to decide that the action period of 2 years in another State Virginia's Statute of limitations satisfied
The plaintiff injured in Virginia in a car accident with a resident of Ohio. He filed suit 2 years in Ohio and he claim an identical here for two years in Virginia had passed away.
After much legal wrangling, the Virginia Court, said that the action in Ohio (although that Court transferred the case ordered to Virginia) well was enough, to stop the execution of the statue of limitations.
In this case, an action in the Ohio Court was filed one day before the running of the limitation period. The fact that the original action in another State, and perhaps in an improper venue was tabled, this dish is no concern. The plaintext of the toll system statute considered started "Measures" within two years. Code § 8.01-229(E)(1). Beginning of the action falls Ohio in the Statute.
This action was allowed by the Statute of limitations in the remaining time, taken after which had initial action in this case one day. No matter the fact that this action ended before the toll period began.
Thornton v. Estes express lines, 15 Cir. CL0800086500, 77 VA. CIR. 455 (2009)
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Court prudential insurance company has a process in a disability claim.
Posted on the Mar 24, 2008
Graham Harrison, suffered from Tourette's syndrome, that it prevented work on a full-time basis. He applied for partial disability benefits under his employer with prudential insurance company of America was a disability insurance policy. His physician a neurologist and expert on Tourette Syndrome had recommended that he work at less than full time resources have led his schedule to place for his condition, to chronic anxiety, a broken sleep patterns and excitement. His doctor felt that a four day work week with a mid week break it would immensely benefit.
Prudential pointed out that Please back benefits. Prudential's position was that, since he had suffered his records Tourette Syndrome for many years the youngest documented no major change, which would justify a change in his work patterns. Prudential also felt that if he could work four days there was no reason that it five days not could be working in the week.
On the first prudential relied on the opinion of the "Medical Director" Jill C. Fallon, m.d., a physician, was board certified in occupational medicine but had absolutely no training in neurology or Tourette Syndrome. This doctor does not even tested the plaintiff.
Prudential have also with the wrong definition of disability in the right to deny.
Mr Harrison appealed the denial of benefits and include additional reports from his well qualified doctors. On appeal, one of his employees showed doctors prudential of the file of this time, Albert Kowalski, m.d.. Not only Dr. Kowalski had no Board certification in neurology or Psychiatry, he had absolutely no experience in the treatment of Tourette Syndrome, and in fact had no clinical practice since 1987. Dr. Kowalski did not examine the claimant. Despite the lack of qualifications and current experience in really patients seen was Dr. Kowalski of the opinion that should have improved condition of the claimant in the course of time.
On the basis of the opinion of Dr. Kowalski, prudential denied the claim. To deny the appeal, prudential again cited the wrong definition of disability. The claimant appeal again and this time consulted with yet an expert in Tourette Syndrome. He was Clinical Professor of Neurology at the Albert Einstein College of medicine and associate professor of Neurology at New York University School of medicine evaluated by Oliver Sacks, m.d.. Dr. sacks had was author of numerous books and articles on Tourette's syndrome. It was Dr. sacks opinion that Mr Harrison was able to maintain its efforts and function very effectively for only two days in a row and then a one day break to recover. He can not work on a "standard" five-day week. This letter of prudential undone by its original decision and awarded the plaintiff benefits. Prudential but still inappropriate policy provisions and language in fact cited, which nowhere appeared in the plan.
Two months after approval of the claim of prudential re review of the claim started. This time, prudential took the position that the plaintiff disability psychoneurotic at least in part by a mental disorder or personality was caused and that benefits are limited to 24 months. Prudential advised the plaintiff that its request would most likely end next month.
The problem with the prudential was denial of the benefits of this time, that there no 24 month limit in this directive.
Prudential is also the file Stephen N. Gerson, m.d. Dr. Gerson has board certified in psychiatry and geriatric psychiatry but listed important professional activity as a "Web management". There was no evidence that Dr. Gerson had no training in the treatment of Tourette Syndrome in the file. He did not examine the claimant. It was Dr. Gerson believes that the various doctors and the applicant simply did a "preference" for the work of any five-day week. Shortly after prudential terminated benefits once again.
Mr Harrison action under ERISA.
The Court reversed denial-of-prudential's. The Court found that "in the worst light, such behavior [misquoting policy provisions] a conscious attempt by prudential a reason for the plaintiff benefits production are."
The Court also ruled that the decision to terminate the benefits was not supported by sufficient evidence. The Court said that some of the information of prudential had ended, that the doctor in benefits cancellation had delivered one. The Court found that prudential had not left to stop benefits after it had previously approved benefits on the same information to all the new information. The Court was also for use by physicians, who examined no experience in Tourette Syndrome, and never, the the plaintiff, prudential critical.
Fairfax, Virginia provides lawyer Ben glass doctor, dentists, lawyers and businessman in long term disability benefit claims.
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Court takes case on lawyer error
Virginia Supreme Court sets at charitable immunity argument Didlake
Read more about the charitable immunity case is here.
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Virginia Supreme Court confirms sentence for doctor
Posted on May 08, 2009
In this action wrongful death was the question whether the motion court circuit offered a jury statement of the plaintiff. Since the statement was not a correct statement of the law, the Supreme Court of Virginia has as it removed a question of fact by the jury, that circuit court refuse not wrong to give the statement.
NANCY WHITE SMITH v. BYUNGKI KIM, m.d., ET al.
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Broken helicopters and wrongful death lawsuit remains in Illinois Court
A defective aircraft and wrongful death lawsuit trial in Illinois, continue to the appellate court of Illinois, first District, Sixth Division decided. A medical emergency service helicopter for air angels, Inc. in Cook County flew Michael Russell.
He died when the plane he was piloting crashed. His family then discovered that one of the helicopter drive shaft bearing split, causing the tail rotor not to work. A French company, SNFA, she made some defects allegedly and unsuccessfully tried to keep the case of the Illinois courts.
SNFA makes custom tail rotor and air- and bearings and parts to companies such as Honeywell, Hamilton Sundstrand and the Jet engine Division of Rolls-Royce provides air and in America. The helicopter, which flew the Russell, was an A 109 helicopters from Agusta Spa made in 1989 and since April 2002 in the possession of air angels. The original camps were in the 1998 and 2002, replaced with SNFA provides the spare parts.
Air Angel crew of pilots, nurses, and paramedics transported thousands of patients to medical centers in throughout Illinois and Indiana. In recent years they have financial and other legal issues learn set them, have operations in Illinois caused. His last day of work due to maintenance safety concern was Russell's fatal flight he was with the helicopters. In the years of concerns he his wife Gloria, that "his several times had finished radio during the flight." force him, a cell phone instead, use the heating work not either often. Lying he also nuts and bolts around the helicopter found was, "recalled it."
Russell was an experienced pilot, with close to 12,000 flying hours in planes and helicopters and received a purple heart from the army after is shot down several times in the Viet Nam war in a helicopter. The crash with air seemed crashed at DuPage Airport odd angels to his wife as he refuel after a routine.
"He told me that if someone ever called me and told me that he had died in a helicopter crash to ensure that it is complete, study was mechanical failure and something that he could not, taxes, because it no way he ever would die in a helicopter crash, when it was" his wife said.
"It is so tragic for a family to lose a loved one because of someone's negligence, in particular if it is possible that the accident cannot be avoided," said Chicago wrongful death lawyer and SuperLawyer Paul A. Greenberg, Esq.. "A victim has the right to determine who was careless or negligent legal action."
Experienced Chicago wrongful death lawyers at Briskman Briskman & Greenberg help families receive fair compensation, the death of a loved one who has wronged. They are experts on leadership to their customers to recover from financial losses, funeral expenses and other costs. All wrongful death cases are treated on contingency basis, so there are no fees if the case is successful.
More to learn visit http://www.briskmanandbriskman.com or call 877-595-HURT (4878).
Certificate of merit in misconduct cases is Unconsitutional Court says
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BenGlassLaw.com
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Supreme Court: privacy of text messages? You got to be kidding!
If your employer, you send a mobile phone/pager questions and you on your personal messages, do you have an expectation of privacy?
My answer: "damn no!"
Apparently was a police officer in Ontario, California his pager use, send to Secually explicit e-Mails to his girlfriend. His boss found out and bad things happened.
His argument? "I had to numbers on the personal messages... so I expect that she would be private?"
This argument makes sense on any level. How, exactly, he thought that anyone would ever be able to decide, what "personally" was and what "work related?"
Well... as is the case get there? The 9th Circuit Court of appeals...(a circuit that contains California) decided that the search violated the fourth amendment explicit private emails after this guy.
My prediction: slam dunk-reversal and a clear decision that if the fight were you with your employer you are lose your job.
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VIRGINIA SUPREME COURT REJECTS DISABLED MAN CHALLENGE FOR CHARITABLE IMMUNITY LAW
VIRGINIA SUPREME COURT REJECTS DEAKTIVIERT MANNES HERAUSFORDERUNG FÜR KARITATIVE IMMUNITÄT GESETZ
Der Supreme Court of Virginia abgelehnt hat ein behinderter Erwachsener Herausforderung Virginias karitative Immunität Recht in einem Fall gegen Didlake, Inc.
Juan R. Jimenez, hatte ein 25 Jahre alten Mann mit schweren geistigen und körperlichen Behinderungen in einem Rechtsstreit behauptet, dass Mitarbeiter von Didlake, Inc., ein führender Anbieter von Dienstleistungen und Arbeitsplätze für Behinderte in Virginia, eine schwere Bein-Fraktur, beim Umgang mit ihm im April 2007 verursacht.
Didlake verweigert, dass es in keiner Weise verantwortlich war und behauptet, dass es immun war gegen verklagt, weil es sich um eine gemeinnützige Gesellschaft war. Jimenez, versicherte durch sein Anwalt, Benjamin Glas, Didlake "Big Business war" dabei etwa 32 Millionen Dollar pro Jahr bei den Einnahmen und, dass die gemeinnützige Immunität-Gesetze nie waren eine große Großunternehmen schützen soll.
Karitative Immunität ist ein Common-Law-Lehre von den meisten Staaten abgeschafft. Diese Doktrin zufolge eine karitative Einrichtung eine begünstigte verklagt werden kann nicht, während in seine Obhut schwer verletzt ist.
Glas III, ein Personal-Injury Lawyer Sitz in Fairfax, VA., sagt:
"In gewisser Weise ist Virginia noch in den dunklen Zeiten, wenn es darum geht, die Immunität von Klage zu gewährt. Das Gesetz aus England, übertragene wurde entworfen, um sicherzustellen, dass für einen wohltätigen Spenden nicht verwendet wurde, zu Klagen zu zahlen. Didlake weniger als.02 Prozent des Umsatzes aus Spenden erhält, und es ist voll versichert."
Jimenezs Mutter, Iris N. Figueroa-Jimenez, sagte:
"Ich bin sehr enttäuscht, dass wir nie wissen genau was geschah mit Juan diesem Tag. Aufgrund der sein Zustand er nicht sprechen und stützt sich 100 % auf andere Menschen zu für ihn zu interessieren. Ich habe ihn an Didlake in gutem Zustand, den Tag und er Chirurgie und eine Stange landete, die in sein Bein benötigen. Ich verstehe nicht wie das Gesetz könnte sagen, dass die Türen Gerichtsgebäude, jemanden wie ihn geschlossen werden."
Um ein Interview mit Rechtsanwalt Benjamin Glas planen, rufen Sie 703 591 9829 an. Ein Q&A Blatt in diesem Fall ist verfügbar.
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Virginia Supreme Court sets at charitable immunity argument Didlake
Read more about the charitable immunity case is here.
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