Insurance Law

What can I do if my health insurance denies my medical claim as being "not medically necessary"?

Your health treatment has been denied because your health insurer says it is not "necessary"?

It's not unusual for health insurers to deny coverage for procedures and medications which they deem "not medically necessary."  Typically, this might start with a procedure which requires you to get advanced approval from the health insurance company.  Your doctor has probably submitted a request that the procedure be approved and your insurer has said that they do not believe the procedure or course of treatment is medically necessary.  At that point, you have to work through your own health insurer's internal appeals process.

Exhaust your internal appeals

The internal appeals may be a single step or may be multiple steps.  Make sure you go through all levels of internal review, also known as "exhausting remedies."  The appeal levels should be listed in your insurance contract or summary plan description.  If you don't have a copy, make sure you request one from the insurer.

If you exhaust the appeals within your health insurance company, and you have a certain type of health plan coverage, you can request an "External review" through the NC Department of Insurance. External review is available for most health insurers that make coverage decisions based on medical necessity. Other types of denial decisions are not eligible for external review.

Medical necessity decisions made by North Carolina State Health Plan are also subject to external review.

External review through DOI not available on certain plans

The NC Department of Insurance says that "North Carolina's state external review does not apply to self-funded employer health plans. (These are health plans for which an employer sets aside his own funds to pay for health claims rather than purchasing insurance, and are often "administered" by health insurance companies.) External review also does not apply to Medicare or Medicaid and is not available for certain types of insurance, including: dental, vision, Medicare supplement, long-term care, specified disease, workers compensation, credit, or disability income, or to medical payments under homeowners or auto insurance."

If your plan allows for external review visit the NC Department of Insurance Website to request an External Review

The North Carolina Department of Insurance runs the external reviews.  They are available whether you have already received a service and coverage for it has been denied or you have requested and been denied coverage for a service that you have not yet received.

Most people will qualify for a standard external review, which results in a decision within 45 days of submitting a request for review. An expedited external review, under which a decision is made within three days of submitting a request, is available in cases where the time involved in obtaining a final decision can have an impact on a person's health.

Yes, external review is free

There are no charges for the external review process. Hopefully, your medical providers will not charge you to fill in the forms for you saying the care was/is medically necessary.  Ask them when you send them the forms.  Usually they won't, because if you win the external review, then the health insurance company must pay for the procedure.

You should request your external review within 90 days of the denial of service.

Here is the link to review the process at the NC Department of Insurance:

https://www.ncdoi.gov/consumers/health-insurance/health-claim-denied/request-external-review

 

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

In a health crisis, make sure you have legal permission to speak for your loved ones

Friends:

In the midst of a health crisis in America, now is a great time to make sure that if crisis strikes, you can talk to your loved one's medical team.

Now is a  a GREAT time to do a living will (declaration for a natural death) and a health care power of attorney. Parents of 18 year olds- even if they act like kids, they are not in the eyes of the law. If your college freshman gets sick, you need a HIPAA release (at the very least) to get information. 
 
So get some health care power of attorneys, HIPAA Forms, and other documents you need. The NC Secretary of State, Elaine Marshall, has most of the forms for free!  They do not have to be formally registered, but you can register them with the Secretary of State  for $10 for extra protection. Hospitals can check the registry.  The forms do need to be notarized.  Check with your bank about notarizing things.  During Covid you can do some notary functions by video!
 
 
A plain old HIPAA (medical release) form will allow doctors to talk and most hospitals won't require it to be notarized. 
 
Here is a generic HIPAA you can use that is "form fillable" as a PDF or printable.  If you have a printer, I would actually print it out and fill it in by hand rather than use the electronic signature.  But if you don't have access to a printer, this should work too.  Download GENERIC HIPAA 2020
 
I've always found that the more I prepare for trial, the less likely I am to have a trial.  So think of this as the lowest risk preventative medicine ever!
 
Note: these forms can be little complicated, so if you have questions, look for an estate planning lawyer near you.  I don't do that type of work, so I'm not your go-to person to answer specifics.  :)
 
Chris Nichols, Attorney
Nichols Law Firm
From the home office
www.NicholsTrialLaw.com 1.800.906.5984

Preparing your home and commercial business for hurricane insurance claims- Hurricane Florence Edition

I write this as Hurricane Florence spins off the coast of North Carolina.  Right now it looks to be a category 4 or 5 storm.

 

As a North Carolina Bad Faith Insurance lawyer, I deal with cases where homeowners insurance or commercial insurance wrongfully adjusts or wrongfully handles storm claims.  These claims typically include refusing to pay for storm damage, refusing to properly replace a damaged roof, excluding flood damage, or simply low balling repair estimates.


image from goo.gl

So what can you do right now before the storm hits?

 

1)  Make sure you have a copy of your insurance policy and declarations page.  Read through what is covered.  Know your coverage when you report your loss.

2)  Prepare your home and business.  You have a duty to mitigate damages when you can do that safely.  Preposition tarps and repair equipment in a safe place so you can immediately plug holes and leaks.  Have some buckets ready to catch water from leaks.

3)  Take video of your home and business inventory.  Preserve copies of important records before the storm hits.  Take your phone and walk around your home or business and record items of value.  Narrate the video and explain what the item is.  For businesses, make sure you know and document exactly what is in inventory.  Keep these papers with you when you evacuate.

 

Did you know that you can hire a lawyer to negotiate losses with your insurance company?  There are non-lawyers who act as "public adjusters" and charge you a percentage of what you recover.  But most public adjusters are no lawyers, so that can not advise you on the legal meaning of your insurance contract, or whether the behavior of the insurance company is in violation of good faith requirements for insurance companies.  Furthermore, if the insurance company won't do the right thing, only a lawyer can file a law suit to enforce your rights under your insurance contract.  Many law firms charge exactly the same as non-lawyer public adjusters to negotiate claims before litigation begins.

 

Nichols Law Firm has experience handling storm losses and works with experienced engineers, architects, roofers, and general contractors to make sure you get the fair and full value for your loss.

 

On a personal note, I grew up in Hurricane country.  I lost my home in 2004 to a huge tree when a micro-burst toppled a 100 ft pine tree on my house during Hurricane Isobel, right here in North Carolina. I, my wife, and my 2 year old were in the home when it happened- thankfully no one got hurt.  I know exactly what it is like to be displaced from your home and have your insurance company haggle with you over everything.  It's very personal to me.

 

So be prepared for the worst, but hope for the best!

 

Chris Nichols

Nichols Law Firm

www.NicholsTrialLaw.com

 

 

www.NicholsTrialLaw.com 1.800.906.5984

Useful list of insurance company claims phone numbers

In NC, accident reports do not include the claims phone number for the liability insurance company. Here is a list of some claims phone numbers. Seriously think about calling a lawyer before you call the insurance company for the driver that hurt you.  Call the Nichols Law Firm.  The liability insurance company is NOT on your side..

 

Company Main claims number:
AIG Insurance Co. Personal: (800) 562-2208 Business: (877) 366-8423

Allied Mutual Insurance Co. (800) 282-9445

Allstate Insurance Co. (800) 386-6126

Amco Insurance Co. (800) 282-9445

American Casualty Co. (800) 437-8854

American Economy Insurance Co. (888) 557-5010

American Employers Insurance Co. In Mass.: (800) 284-6730Outside Mass.: (508) 549-9147

American Family Mutual Insurance Co. (800) 374-1111

American Home Assurance Co. Personal: (800) 562-2208 Business: (877) 366-8423

American International Ins Co. (800) 562-2208

American States Insurance Co. (888) 557-5010

Anthem Casualty Insurance Co. (800) 537-5568

Arbella Mutual Insurance Co. (617) 328-2800

Arkwright Mutual Insurance Co. (781) 890-9300 ext. 2502

Atlanta Casualty Co. (770) 447-8930

Atlantic Mutual Insurance Co. (800) 945-7461

Auto-Owners Insurance Co. (517) 323-1365

Berkshire Mutual Insurance Co. (800) 892-8877

Birmingham Fire Insurance of PA (877) 366-8423

Buckeye Union Insurance Co. (312) 822-5000

California State Auto Assn. Inter-Ins (800) 922-8228

Camden Fire Insurance Assn. (888) 421-2111

CIGNA Property & Casualty Ins Co. (215) 761-1000

Cincinnati Insurance Co. Call your agent

Citizens Insurance Co. of America (800) 628-0250

Colonial Penn Insurance Co. (800) 523-4040

Commerce & Industry Insurance Co. (877) 366-8423

Commerce Insurance Co. (800) 221-1605

Commercial Union Insurance Co. In Mass.: (800) 284-6730 Outside of Mass.: (508) 549-9147

Continental Casualty Co. (312) 822-5000

Continental Insurance Co. (312) 822-5000

Coregis Insurance Co. (312) 849-5000

Country Companies Insurance Group (800) 846-0100

CUMIS Insurance Society Inc (800) 637-2676

Dairyland Insurance Co. (715) 346-9200

Deerbrook Insurance Co. (800) 253-6611

DeSoto Insurance Co. (888) 823-9754

Explorer Insurance Co. In Calif.: (800) 788-8984 Outside Calif.: (858) 350-2400

Farmers Insurance Group of Cos. (888) 516-5656

Fidelity & Deposit Co. of MD (800) 854-6011

Fire Insurance Exchange (323) 964-8911

Firemens Insurance Co. of Newark NJ (312) 822-5000

Foremost Insurance Co. (800) 527-3907

GEICO Indemnity Co. (800) 841-3000

General Accident Ins. Co. of America (CGU) (888) 421-2111

General Casualty of WI (888) 737-8256

General Insurance Co. of America (206) 545-5841

Georgia Farm Bureau Mutual Insurance Co. (912) 474-8411

Government Employees Insurance Co. (800) 841-3000

Grange Mutual Casualty Co. (800) 445-3030

Great American Insurance Co. (800) 724-7722

Great West Casualty Co. (800) 228-8040

Hanover Insurance Co. (508) 855-8000

Harleysville Insurance Cos. (800) 892-8877

Hartford Accident & Indemnity Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Hartford Casualty Insurance Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Hartford Fire Insurance Co. Personal: (800) 243-5860 Business: 1-800-327-3636

Horace Mann Insurance Co. (800) 999-1030

Infinity Southern Insurance Co. (800) 334-1661

Indiana Farm Bureau Insurance (888) 392-5246

Insurance Co. of North America (215) 761-1000

Insurance Co. of the State of PA Personal: (800) 562-2208 Business: (877) 366-8423

Integon National Insurance Co. (800) 468-3466

Interinsurance Exchange Auto Club So. (714) 850-5111

John Deere Insurance Co. (800) 635-3377

Kemper Auto and Home 1-888-216-6066 Kemper Insurance Co.

Kentucky Farm Bureau Mutual Ins. Co. Call your agent Lexington Insurance Co. (877) 366-8423

Liberty Insurance Corp. (800) 526-1547

Liberty Mutual Fire Insurance Co. (800) 526-1547

Liberty Mutual Insurance Co. (800) 526-1547

Lumbermens Mutual Casualty Co. Call your agent Medical Liability Mutual Ins Co. (212) 576-9850

Mercury Insurance Group (800) 489-4001

Metropolitan Property & Casualty Co. (800) 854-6011

Mid-Century Insurance Co. (323) 964-8911

Motors Insurance Corp. (313) 556-4632

National Fire Ins. Co. of Hartford (312) 822-5000

National Indemnity Co (402) 536-3000

National Union Fire Ins.Pittsburgh Personal: (800) 562-2208 Business: (877) 366-8423

Nationwide Mutual Fire Insurance Co. (800) 421-3535

Nationwide Mutual Insurance Co. (800) 421-3535

New Hampshire Insurance Co. (877) 366-8423

New Jersey Manufacturers Ins. Co. (609) 883-1300

New York Casualty Insurance Co. (800) 892-8877

North Carolina Farm Bureau Mutual Ins. (919) 782-1705 ext. 8693

North River Insurance Co. In Mass.: (800) 284-6730 Outside of Mass.: (508) 549-9147

Northern Assurance Co. of America (617) 725-7033

Occidental Fire & Casualty Insurance Co. (800) 525-7486

Ohio Casualty Insurance Co. (513) 867-3000

Oklahoma Farmers Union Mutual Insurance Co. (800) 364-1511

Omni Insurance Co. (800) 727-OMNI (6664)

Pacific Employers Insurance Co. (215) 761-1000

Phoenix Insurance Co. (800) 252-4633

Preferred Risk Mutual Insurance Co. (515) 267-5299

Progressive Casualty Insurance Co. (800) 274-4499

Progressive Northern Insurance Co. (800) 274-4499

Progressive Northwestern Ins. Co. (800) 274-4499

Progressive Specialty Insurance Co. (800) 274-4499

Protection Mutual Insurance Co. (847) 825-4474

Reliance Insurance Co. (215) 761-1000

Republic Underwriters Insurance Co. (214) 559-1270

Rockingham Mutual Insurance Co. (800) 662-5246

Royal Insurance Co. of America (800) 842-1918

Safeco Insurance Co. of America (800) 332-3226

Scottsdale Insurance Co. (480) 948-0505

Selective Insurance Co. of America (973) 948-2900

Sentry Insurance a Mutual Co. (715) 346-9200

Shelter Mutual Insurance Co. (800) SHELTER

Southern United Fire Insurance Co. (800) 851-9476

Standard Fire Insurance Co. (800) 252-4633

State Farm Fire & Casualty Co. (888) 613-3966

State Farm Indemnity Co. (888) 613-3966

State Farm Mutual Automobile Ins. Co. (888) 613-3966

Travelers (860) 277-0111

Trinity Universal Insurance Co. (214) 360-8039

Twentieth Century Insurance Co. (800) 211-7283

United Services Automobile Assn. (800) 531-8222

United States Fire Insurance Co. (800) 690-5520

USAA Casualty Insurance Co. (800) 531-8222

Utica Mutual Insurance Co. (800) 695-1914 Vesta Fire Insurance Corp. (800) 444-3928

Westfield Insurance Co. (800) 443-3311

Windsor Group (800) 852-8220

Worcester Insurance Co. (800) 892-8877

Zenith Insurance Co. (800) 440-5020 

www.NicholsTrialLaw.com 1.800.906.5984

NC Senate Bill 33 and Loss of Liberty: How the NC GOP rolls back 235 years of independence and makes big PHARMA the new "King"

Two Hundred and Thirty-five years ago to the day, North Carolina was the first of the Colonies to authorize its delegates to declare independence from Great Britain.  

So how is this relevant to "tort reform" and the pending legislation called Senate Bill 33 in the North Carolina House?  Well, this law, proposed by Rep. Johnathan Rhyne (R- Lincolnton), takes away an essential ingredient of Liberty of the people of North Carolina-  The right to a jury trial.

Rep. Rhyne's bill says that when a citizen is hurt or killed by a negligent emergency room physician, or nurse, or hospital worker, that injured person has no right to sue for negligence.  Further, the bill says that when a citizen of North Carolina is injured or killed by a defective drug manufactured ANYWHERE in the world, that citizen can not sue the manufacturer if the drug has been "approved" by a state or federal agency.  Taking away the "right to redress" or "the right to sue" is the same as depriving someone the right to a jury trial.  If you can't sue, you can't get a jury.  The doors to the court house are closed to these people.

The Halifax resolves speciically address the right to trial by jury.  In the Resolves the authors talk about the King seizing "Ships belonging to America" which "are declared prizes of War" and that the colonies have been deprived the legal right to get these ships back or enter into a process of determining the legal rights to the ships:  "And ...the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried."

Rep. Rhyne's proposed legislation takes us back to the days of being subjugated to the King and the Crown.  Of course, one might make the distinction that under Rhyne's law, the State of North Carolina is not "profiting" from the people.  That is true, but Rhyne's law is even WORSE.

Under Rhyne's proposals, the State of North Carolina not only denies "obtaining redress" but does so to the financial advantage of international drug companies and for-profit hospitals and corporate physician groups.

This law is a glaring example of "Big Government" taking fundamental liberties of THE PEOPLE and redistributing the spoils of war to anti-liberty, big monied cronies.

Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Senate Bill 33 takes away the trial by jury of people injured by negligent doctors and also those hurt or killed by defective drug products. These people are completely deprived of their liberty to hold bad actors accountable for their wrongs.

Why is the NC GOP rolling back our rights to pre-independence days?

Why did certain colonists remain loyal to the King? Scholars say one unifying characteristics of Loyalists to the Crown during the Revolution was this:  They had a long-standing sentimental attachment to Britain, often with business ties.  Also known as MONEY. 

How much did Rep. Jonathan Rhyne take from Big PHARMA and Medical Lobbyists?

PLEASE: preserve your liberty and rights. Call Anyone on this list and tell them to vote NO to SB33: https://spreadsheets.google.com/ccc?key=0AlinyCcVT4eGdGZLZU95VTREcW12RXBoLXlKU2paSWc&hl=en#gid=0

The below is from:  http://ncpedia.org/history/usrevolution/halifax-resolves

HALIFAX RESOLVES

Excerpted from "Historical Miscellanea: An Early History of North Carolina," North Carolina Manual, 1991-1992, published biennially by the NC Department of the Secretary of State.

Halifax Resolves

North Carolina, on April 12, 1776, authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves, which read as follows:

The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defence of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrouled and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity daily employed in destroying the People and committing the most horrid devastations on the Country. That Governors in different Colonies have declared Protection to Slaves who should imbrue their Hands in the Blood of their Masters. That the Ships belonging to America are declared prizes of War and many of them have been violently seized and confiscated in consequence of which multitudes of the people have been destroyed or from easy Circumstances reduced to the most Lamentable distress.

And whereas the moderation hitherto manifested by the United Colonies and their sincere desire to be reconciled to the mother Country on Constitutional Principles, have procured no mitigation of the aforesaid Wrongs and usurpations and no hopes remain of obtaining redress by those Means alone which have been hitherto tried, Your Committee are of Opinion that the house should enter into the following Resolve, to wit

Resolved that the delegates for this Colony in the Continental Congress be impowered to concur with the other delegates of the other Colonies in declaring Independency, and forming foreign Alliances, resolving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time (under the direction of a general Representation thereof to meet the delegates of the other Colonies for such purposes as shall be hereafter pointed out.

Hooper, HewesBW, PennThe Halifax Resolves were important not only because they were the first official action calling for independence, but also because they were not unilateral recommendations. They were instead recommendations directed to all the colonies and their delegates assembled at the Continental Congress in Philadelphia. Virginia followed with her own recommendations soon after the adoption of the Halifax Resolution, and eventually on July 4, the final draft of the Declaration of Independence was signed. William Hooper, Joseph Hewes, and John Penn were the delegates from North Carolina who signed the Declaration of Independence.

www.NicholsTrialLaw.com 1.800.906.5984

Will NC be the worst state for manufacturers? The unintended consequence of HB 542: Destroys insurance and business subrogation for losses from product fauilure

I am attaching below the letter I sent to three members of the North Carolina House Select Committee on Tort Reform.

I believe that House Bill 542 may "look" good for business but have the unintended consequence of making North Carolina the WORST place for manufacturing in the entire United States.  I've inserted a few comments below in [BOLD]  brackets.

Rep. Stam, Rep. Weiss, and Rep. Murray:

I am a lawyer, like each of you, and I would like to call to your attention what I think is a major unintended consequence of HB 542.  I called each of your offices today to discuss this issue.

HB 542 destroys the right of a NC manufacturer and their insurance company to subrogate on catastrophic losses caused by defective products.  This hurts manufacturing, business, and insurance interests in North Carolina.

Please read the below example:

Products Liability Immunity Destroys Business and Insurance Subrogation:  HB 542 gives immunity from suit to any company that produces a faulty product that has been "approved for sale" by any State of Federal regulatory agency.  This bar would apply to insurance subrogation claims against the original tortfeasor and therefore bars insurance companies and the self-insured from recouping losses caused by faulty products.

EXAMPLE.  Power Plant Explosion:  A North Carolina power company buys a defective industrial boiler from a Chinese (or any) manufacturing company. This product is "approved" by several state and federal agencies as required by law."  [Does this sound like the Apex Chemical explosion?]

That boiler explodes and spreads toxic ash over a 3 mile radius. The environment is polluted, people are made sick, and the business site is shut down. The NC business itself suffers a $300 Million dollar business and property damage loss and is sued by the State and citizens for the toxic ash injuries.  The insurer for the power company  (or self-insured company itself) must pay for the business loss, claims of injuries and property loss, but would be prohibited by HB542 from seeking a recovery from the negligent Chinese manufacturer.  The State of North Carolina would be prohibited from seeking compensation for the loss to the environment and the toxic clean up costs. This will increase the cost of insurance for business and the State and possibly force insurers to stop insuring for loss from product defect.

HB542 uses the following definitions:  [See page 8 of HB542] " (1) "Claimant" means a person or other entity asserting a claim"

"Product liability action" includes any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling of any product."  (Emphasis added)

"No manufacturer or seller shall be held liable in any product liability action if any one of the following apply:"

Under this very simple language above, businesses that suffer catastrophic losses due to product defects will NOT be able to recoup those loses.

Moreover, what will be the effect on Business Insurance Policies?  A standard loss policy would have language like the following:

 "If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization. You agree to cooperate with us and not do anything that will interfere with our chances of recovery".

Insurers would be subrogated to the right of the North Carolina company.  Because subrogation is "the substitution of one person in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities," the North Carolina Company would have no right to recover under HB542 and thus the insurance company would be subrogated to nothing.

North Carolina will be the ONLY state in the nation with such a law.

This raises many difficult questions:

1)  Will insurance companies issue large commercial policies to North Carolina manufacturers know there will be no right to subrogate in failed products cases?  Can businesses operate without this insurance?

2)  Will North Carolina manufacturers receive insurance rate increases due to the higher cost risk for North Carolina claims?

3)  Will manufacturers avoid locating in North Carolina because they will not be protected from defective products they purchase for their business?

4)  Will insurance products for consumers be impacted by the lack of subrogation for faulty manufacturing?  Will home owner insurance rates increase due to the number of fires caused by defective products where there will be no subrogatable interest for the insurance company?

5)  Why would a manufacturer choose North Carolina over 49 other states  knowing that it had no protections from faulty products within its own facility?


I ask that you stop HB542 before it further erodes North Carolina's business economy.

Chris Nichols

________________________________

(update) 

A non-hypotehtical Example of Products Liability Subrogation In Insurance

Here is an excellent example of how subrogation works in the context of product liability claims.  This is a blog post from Cozen O'Conner, a national law firm that helps insurance companies recover funds from manufacturers of defective produts when those products cause damage which is insured.  Here is a link to their full blog post. Lasko Recalls 4.8 Million Box Fans

The case involved a massive barn fire at a breeding farm in Hondo, New Mexico. Six world class race horse breeding stallions were killed in the fire and the barn itself was totaled. Cozen O’Connor represented over sixty sophisticated horsemen clients who had ownership interests in the stallions, and their insurers. The insurers for the horses and the barn went to great lengths to preserve the fire scene, and as a direct result of their diligence the experts were able to examine each electrical device in the barn and identify the fatal flaw in the Lasko fan motor.

On March 24th (long after the fire) the Consumer Product Safety Commission announced a voluntary recall of 4.8 million Lasko box fans. The recall notice reports “an electrical failure in the fan’s motor poses a fire hazard to consumers.” The CPSC cites a “barn fire resulting in extensive property damage” as a basis for the recall.

If this fire had occurred in North Carolina under House Bill 542, the lawyers at Cozen O'Conner would have been barred from seeking recovery from Lasko.  The insurer would have paid out millions and not been reimbursed by the negligent manufacturer of the fan.  And who would absorb the cost of the unreimbursed expenses?  Anyone who buys insurance.

_______________________________________

Hopefully this will make a difference.  This bill is not just about people injured by defective products, but also business.

This is an actual photo of the Apex, NC plant explosion at a chemical storage facility.

RLK_EQ_Fire

www.NicholsTrialLaw.com 1.800.906.5984

House Bill 542: NC to be dumping ground for dangerous products

The North Carolina House introduced House Bill  542 on March 30.  This bill grants immunity from suit to any product "regulated" by a State or Federal Agency.  This Bill will make NC a dangerous dumping ground for poisonous and defective drugs and products.

 The Bill was filed, all of 18 hours before it was debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

 

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

NC House Bill 542 may give immunity to not only Emergency Room doctors but also to doctors delivering babies

NC House Bill 542 the Omibus "Tort Reform" Bill, has a provision that on its face seems to give immunity to "Emergency Rooms" for negligence.  But the Bill is very subtle in the way it defines "emergency."  This information was brought to my attention by a lawyer who used to be a Hospital Administrator and know how EMTALA works.  The drafters of the Bill used legal "slight of hand" to also make the Bill give complete immunity from negligence to any Doctor, nurse, or Hospital delivering a baby under anything than scheduled visit. Child_in_wheelchair

Here is the language from the proposed law:

In any medical malpractice action arising out of the furnishing or the failure to furnish services pursuant to obligations imposed by 42 U.S.C. § 1395dd for an emergency medical condition as defined in 42 U.S.C. § 1395dd(e)(1), the defendant health care provider  shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the health care provider's deviation from the standard of care required under subsection (a) of this section constituted gross negligence, wanton conduct, or  intentional wrongdoing. Nothing in this subsection shall be construed to change, alter, override,  or otherwise affect the provisions of G.S. 90-21.14, 90-21.15, 90-21.16, or 20-166."



42 U.S.C. § 1395dd is EMTALA , the Emergency Medical Treatment and Active Labor Act, and it says:

(b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general

If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.

 

(e) Definitions

In this section:

(1) The term “emergency medical condition” means—

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Legal Slight of Hand

It certainly looks like the lobbyists for the medical community knew exactly what they were doing when they crafted this portion of the proposed law.  The EMTALA definition is a little bit "loosey goosey" (mostly because it was intended as a way to be broad and make sure hospitals did not "dump" people who were uninsured in the middle of giving birth).

Because of this broad definition of emergency, and because our statute integrates that definition, most people undergoing any serious treatment in a hospital:  delivering a baby, having a heart attack, bleeding profusely, etc, will be defined by EMTALA as being "in an Emergency" and thus, ANYONE treating them will have IMMUNITY.

I think the legal inquiry will be:

"When the alleged negligence took place, could the patient have been transferred to another facility pursuant to EMTALA?" 

If yes--->  no immunity
If no ---->  Emergency under EMTALA = Immunity

Do you want just about every Obstetrician to have immunity if they make an error?

Sign-to-Emergency-Room Also, because this "definitional slight of hand" is not as obvious as saying "doctors delivering babies have immunity" will the Medical Malpractice Insurance Companies use this "gray area" to say "Well, the Legislature didn't give you outright immunity, so we can't lower the insurance rates of OBGYNs because we don't actually know if the immunity applies.  We'd have to look at it on a case by case basis."?

Bingo!  The doctors will raise an "EMTALA Immunity Defense" in EVERY case, creating a cottage industry for Insurance Defense Lawyers to bill hundreds of thousands of dollars, the Medical Malpractice Carriers will continue to charge too much money to the Doctors while enjoying the "Immunity Defense" that will probably kill most claims, and the babies who are born maimed or injured or die- well, they will have no right to a jury trial.

Please contact a member of the Committee and voice your opinion on HB 542.  Say no to IMMUNITY!

NC House Select Commitee on Tort Reform Contact Information

 

www.NicholsTrialLaw.com 1.800.906.5984

North Carolina Legislature wants to give immunity from law suits to manufactures of deadly products that kill and maim people and destroy property

The North Carolina House is set to discuss a "tort reform" Bill tomorrow H542 (they have not "officially" released it but NC Trial Law Blog has an advanced copy you can see here:  Download Big Bill Tort Reform) that would grant immunity from suit to any product "regulated" by a State or Federal Agency.

UPDATE:  4:24 pm March 30, 2011:  The Bill has finally been filed, all of 18 hours before it is to be debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

   

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

Medical Malpractice "reform" proposed in NC: Do it yourself tort reform release

The new GOP majority Senate in the General Assembly of North Carolina has just introduced the "wish list" of Medical Malpractice Tort Reform bills today.   Senate Sponsors:  Tom Apodaca(R), Tom Brown(R) and Bob Rucho(R).

This proposed Senate Bill S33 is a laundry list of of ways to limit the rights of normal citizens in NC.  While physicians may THINK this proposed Bill will help them, in reality, the bill is a giant GIFT to the insurance industry because it simply reduces the amounts of money insurance companies might have to pay in legitimate claims.  Or put another way, it  limits the recovery of individuals whom a jury have determined are truly injured by medical negligence.

Here is a quick rundown on the Bill and my comments on the reality of the provisions.

EMERGENCY MEDICAL CARE- If your emergency room doctor commits negligence, you can't sue them. You can only sue if they are GROSSLY negligent, like, if they were drunk. So, when the ER doc gives your spouse an injection of penicillin, even though her medical chart says she is severely allergic to it, and she dies- too bad.  Gross negligence is a very high standard in North Carolina.

BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES in any case over $75,000.

This means that in any case with a value of over $75,000 (which is almost every medical malpractice case out there) you essentially have two trials.  The first part is on the question of negligence.  Did the doctor make a mistake.  The second part is on the damages.  Sounds tempting and simple but the real reason behind this is two fold.  First, it makes trials longer and more costly for the injured party.  Many witnesses who could testify once, now have to testify twice.  Experts are very expensive, sometimes $5,000 per day.  Insurance Companies have nearly unlimited resources to bring in experts.  Injured people do not.  Second, by keeping out the damages, the jury does not have any idea how badly the mistake has affected the injured person. This "depersonalizes" the case which is an advantage to the Defendant.

LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED ($250,000 cap on damages) As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. So if your child is burned on 90% of their body in a negligent surgical fire, they get about $3,000 a year for life.  And of course, this cap on damages ONLY affects people who have a legitimate case, i.e., some one whom a jury has just determined is injured as a result of negligence.  This cap also disproportionately effects retired people who do not have future lost earnings.  And of course, this means insurance companies can get off cheap, even if a jury thinks a higher amount is warranted.

BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT.  Basically, this is in there because if the person who is awarded damages by a jury dies later, their family will not inherit the money. It will go back to the insurance company.

MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This just makes it cheaper for insurance companies to appeal when they lose.

If approved, this act becomes effective October 1, 2011. (Better go to the doctor now.)

When "tort reform" was being debated on the Federal level, I produced a mock "Do It Yourself Tort Reform Release" which tried to demonstrate the reality of what the law makers were proposing.  It got picked up by some national press and "went viral," in as much as something about the law goes viral.

So, if you just can't wait for Medical Malpractice "tort reform", just download this handy form, sign it, and take it to your next doctor's appointment.

I was hoping I would never have to resurrect this link, but here it is:  Download Do It Yourself Medical Malpractice Tort Reform Release 2011

 

Do it Yourself Medical Malpractice Tort Reform Release

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984