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It’s no secret: health insurance has made everything more complicated and more expensive. Most of the time, we just pay our deductibles and our co-pays and let the insurance take care of the rest. But behind the scenes, a whole host of tricks and tactics take place between health insurers and providers that most of us don’t even think about.

One such arrangement is the use of the contractual DRG, or the “Diagnosis Related Group.” The DRG was originally developed by Medicare in an effort to simplify payments and – supposedly – to make reimbursement more fair. It works like this: instead of counting up all of the individual pieces of treatment, equipment used, and medication administered to a patient, Medicare figured out the average cost to treat each patient with the same condition. For instance, for any patient with the flu, Medicare figured out the average amount of money it costs to take care of a flu patient. Then, it decided to pay hospitals that same amount for each flu patient it treated – regardless of how much the hospital actually spent on that patient’s care. This means that, if a hospital could take care of a flu patient for less than the average cost, it made a profit. On the flip side, if the patient was “more expensive” than the average patient – that is, if he or she required more advanced treatment or a longer hospital stay – then the hospital had to eat any extra cost above and beyond the payment it received.

There are two problems with this model. The first is obvious: it encourages hospital to devote as few resources as possible to any given patient. If the hospital is getting paid $3,000.00 to take care of a patient, but can get away with releasing her after only $1,500.00 worth of treatment – why wouldn’t it take advantage of that? Under this model, it’s easy to see how hospitals can become too intent on maximizing profit in exchange for doing the bare minimum to treat their patients.

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Many seniors are nervous about going to a nursing home, and understandably so. But it can be hard to tell the difference between nervousness about being in a new environment, unfounded fears related to age-related changes in mental status, and signs that something is actually wrong in the nursing home environment.

In our line of work, we’ve seen all too often that nursing home residents’ fears of staff or complaints of mistreatment are often brushed aside. Such reports by aging residents are commonly brushed aside by staff as delusional. This makes it hard for families to determine which complaints should be taken seriously. When family members do press for answers regarding how their loved ones are being treated, they are often described as difficult. They are accused of disrupting their loved one’s care and interfering with the staff’s ability to do their job.

As one recent case in Georgia demonstrated, however, a nursing home resident’s fears can also be a sign of real neglect or mistreatment. In that case, a nursing home was sued by the family of a veteran who died in a nursing home. The director of nursing testified at deposition that she ran to the resident’s room and performed CPR. Luckily, there was video evidence that proved her story was untrue. The video showed that it took over eight minutes for someone to respond to his call for help, and that, even when someone finally checked on him, nothing was done to help him, even though he was gasping for air. When they checked on him again an hour later, he was unconscious. Three nurses stood around his bed. None of them performed CPR. The video showed them leaning on his bed and laughing. The case eventually resolved, and resulted in the nursing home reportedly taking steps to improve their quality of care.  You can read more about the case here:

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yay-1410902The clock started ticking on losing their child when the Maine State Police arrived. Well, actually, it started before that.

During the course of “a physical altercation between the mother and the father” in front of their one year old son, the mom hit the father and knocked out one of his teeth.  (In Re B.P., 2015 ME 139)

When the State Police responded to a telephone call they set in motion the process of removing the baby from the home and granted custody to the Department of Health and Human Services. That was in July, 2012.  Four months later, the District Court (Maine’s court for family matters) found that both the mom and the dad had abused substances and exposed their son to domestic violence. It was determined that it was in the best interest of the baby to place “B. P.” in the care of an aunt and uncle while waiting for the appropriate time to reunite the toddler with his parents.  Continue reading →

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motorcycle-stunter-tyre-burnout-1301095-m-3.jpgIn most states, including Maine, uninsured motorist coverage is mandatory. Uninsured motorist coverage is an exception to the basic idea in insurance and tort law that an injured person’s damages should be paid by or on behalf of the at-fault party. In Maine, the amount of uninsured motorist coverage that must be provided depends on the applicability of the Maine Automobile Insurance Cancellation Control Act. Any policy subject to this law must provide coverage that is no less than the amount of liability coverage offered to the purchaser, unless the purchaser rejects that amount.The amount of uninsured motorist coverage cannot be less than the minimum limits for bodily injury liability insurance. If a policy is not subject to the law, uninsured motorist coverage is required only in accordance with statutory minimums.

In the recent Maine Supreme Court case Dickau v. Vermont Mutual Insurance Company,the plaintiff had been struck by an under-insured driver while riding his motorcycle. The plaintiff argued that either he was entitled to uninsured motorist coverage pursuant to an umbrella policy with his insurance company, based on the policy’s language or by operation of law.

The plaintiff suffered more than $250,000 in damages, but the defendant’s insurance policy only provided $100,000 in liability insurance coverage. The plaintiff, on the other hand, was covered by two insurance policies. A Dairyland Insurance Company policy insured the plaintiff’s motorcycle and offered $250,000 in uninsured motorist coverage. An umbrella policy offered liability coverage in excess of minimum primary insurance for up to $1 million per occurrence.
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medical-equipment-1342025-m-2.jpgIn the recent Maine Supreme Court case of Estate of Nickerson v. Carter, a man’s wife appealed from a judgment in favor of a doctor and a primary care facility after a jury found that the doctor was negligent, but that his negligence was not the legal cause of the man’s death. The estate argued that the trial court had erred in five ways. Among the errors it claimed was that the trial court had improperly admitted findings from the medical malpractice screening panel.

The doctor began seeing the man as a patient in the winter of 1993. In an initial visit, the doctor drew blood from the man and found that the man’s cholesterol level was moderately elevated, which is a risk factor for developing cardiovascular disease. The doctor decided he would follow up with another exam in the next two years. Although he saw the man a few times over the next three years, however, he did not order retesting of the man’s cholesterol levels.

In 1997, the man requested an exam and asked the doctor to help him with filling out forms required for participation in an outdoor expedition. The doctor signed the forms but again did not order testing of his cholesterol. The man returned for an exam in 2001, and the doctor finally ordered the test of his cholesterol level. The test revealed that the man’s cholesterol levels had risen. The doctor advised him of corrections he could make to his diet. The doctor made a note to himself to recheck the man’s cholesterol levels in 6-12 months, but did not check the man’s cholesterol within that time frame.
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Spin Papa dog MGD©.jpgUnder Under section 3952 of Title 7 of the Maine Revised Statutes, anyone who owns or keeps a dangerous dog can be fined between $250 and $1,000. If a dangerous dog hurts you, you may be able to bring a lawsuit for negligence and reimbursement for injuries under section 3961. In Maine, when a dog injures someone who is partly at fault for the injury, the damages will not be reduced unless the court determines the plaintiff’s fault for the attack exceeds the fault of the dog owner.

Maine is a strict liability state for dog bite and dog attack cases. When an injury happens on a dog owner’s property, a plaintiff must show that the owner was negligent. When the injury does not occur on the owner’s property, a plaintiff does not need to show negligence.

In a 2013 case, Fields v. Hayden, a woman who had been attacked by a dog appealed from a summary judgment in favor of the landlords of the dog’s owners. The woman alleged that the attacks occurred because the landlords were negligent. The case arose when the defendant landlords leased a single family home to a couple, the Perrys. The lease provided that the Perrys were allowed to have pets in the home, but that they would be responsible for property or other damage caused by the pets. Their dog allegedly attacked the plaintiff on three occasions.
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gloveimagemorguefilemelodi2.jpgAfter an accident, the responsible party may put into practice remedial measures to prevent the type of injury that occurred from happening again. If you are the victim of an accident that could have been prevented, you may believe that the remedial measures prove the responsible party was negligent. However, only under limited circumstances are those measures admissible in evidence.

In a recent Maine Supreme Court case, a deceased woman’s estate appealed a judgment in favor of the nursing home where she had fallen and died. The woman was 85 when she died. The nursing home had created an individualized care plan for the woman, as it did for all its residents. The plan accounted for her propensity to fall, and it was regularly updated to show her current condition and inform the staff of the level of assistance she required.

The woman routinely got up several times a night to use the bathroom, often without asking for help. The nursing home could not restrain her from doing this without a physician’s order. However, its staff was alerted by an automated bed alarm every time any resident got out of bed at night.
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hospital-corridor-2-65904-m.jpgIf you are hurt by a professional’s negligence, you may be wondering what evidentiary rules apply to the professional’s apologies or expressions of sympathy. Can they be used to prove that the professional was negligent? In the recent Maine appellate case Strout v. Central Maine Medical Center, the Maine Supreme Court considered the effect of an apology in a medical malpractice case. The medical center appealed a verdict in favor of the plaintiff. The case arose when the plaintiff sought treatment in the ER for pain in his abdomen. A lesion was found on his liver. A surgeon evaluated his CAT scan and decided he was most likely suffering from cancer.

Days later, the plaintiff went to the office for a follow-up. The doctor telephoned the pathologist in charge of testing the tissue. The pathologist said he would send it for more testing, but that he believed the cancer to be of hepatic or pancreatic origin. He also told the doctor he needed more tissue to finish the assessment.

The doctor told the plaintiff that he was waiting for final results but believed he had liver or pancreatic cancer. He also told the plaintiff that if this was so, the cancer would be inoperable due to the location of the lesion and that even with chemotherapy, patients with these types of cancer usually had less than one year to live.
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MFile, ZeroSilence3 Snowmobile photo.jpgSnowmobile season started a little later in Maine this year because of unseasonably warm temperatures. Underneath the snow on Maine’s 14,000 miles of snowmobile trails, there was water and soft ground. The Maine Warden Service and Maine Snowmobile Association, promoting snowmobile safety, urged snowmobile riders to use the added time to prepare themselves better for the season and cautioned against riding the trails before they were groomed.

When snowmobiling on new snow, there is a danger of hitting rocks that can throw you into trees or other obstacles. In addition, the quality of the snow can dramatically affect steering. The forward momentum of the snowmobile causes a buildup that can cause the snowmobile to turn away, but if conditions are hard or bare, there is no buildup of snow, which changes the steering. If the condition of the snow is poor, you cannot safely travel at a fast speed. In some cases, snowmobiles travelling on lakes and streams break the ice, falling through. In Maine advisories are issued by the state government and private snowmobile clubs regarding the safety of frozen surfaces, and it’s important to always check those before you go out throughout the entire snowmobiling season.

Last season, there were 177 snowmobile crashes in Maine. Six of these were fatal. According to the Maine Warden Service, the most common reasons for these crashes are speed, driving beyond one’s ability, and driving outside the distance of people’s headlights at night. Alcohol can also contribute to crashes. Other factors that can affect the ability to drive a snowmobile safely are visibility, snow and ice conditions, faulty equipment, operator fatigue, and the rider’s age. If you are planning to go out snowmobiling, it is important to tell friends or family about your trip plans. Often, riders fail to leave a plan behind, which can make a rescue much harder.
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operation-1389104-m-5.jpgThe government is cracking down on hospitals with the highest rates of infection and complications by docking Medicare payments. Those hospitals with the worst rates of infections and complications are going to lose 1% of each Medicare payment for one year starting this fall. Federal officials have released a preliminary analysis that identifies 761 hospitals that may be assessed based on poor performance. The estimated sanctions total $330 million over the year, although there may be some changes to assessments before the end of the year. Infections at hospitals are on a decline, but they are still extremely common.

The penalties will hit some types of hospitals especially hard. Penalties are more likely to be imposed on hospitals that are publicly owned or that treat substantial numbers of low-income patients. Major teaching hospitals will likely also be affected.

In calculating a hospital’s infection rates, the government will consider the hospital’s size, location, and affiliation with any medical school. One of the factors that contribute to a high scores were high rate of urinary and bloodstream infections among Medicare patients being treated in intensive care. Another factor is a high rate of surgery-related complications. Certain type of hospitals, such as rehabilitation clinics, children’s hospitals, psychiatric facilities, cancer centers, and critical-access hospitals are exempt from the penalties, as are hospitals with too few patients to be properly evaluated.
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