Birmingham Injury Blog

One thing that is often surprising to our clients when they have been injured in a car wreck or truck wreck is that the health insurance company (BlueCross BlueShield, United, etc.) which has paid for medical treatment often has the right to recover the amount of money that it spent on medical treatment. This right is called a "subrogation" right, which means that the health insurance company can “stand in the shoes” of the injured person and recover its money from the wrongdoer.

When a health insurance company pays medical bills, it normally does not pay dollar-for-dollar but instead pays a percentage. It is that lesser percentage (for example $200.00 on a $1000.00 bill) that must be reimbursed. Normally, the health insurance company will negotiate with the injured person and will reduce the amount that it claims as subrogation by the amount of the attorney’s fee being paid by the injured person to his or her attorney. This makes sense as the injured person has hired an attorney to create a “pool” of money from which the health insurance company is reaching into and drawing from. So the health insurance company should have to pay its share of the attorney’s fee to create that. This has the effect of lowering the amount that the injured person must pay back to the health insurance company.

The law changed a number of years ago so that the Jury can now hear that the injured person has health insurance and how much the health insurance company actually paid. We will address this in a separate blog post, but we did want to alert you to this fact and to be watching for this blog post from us.

If you have been injured in a car wreck or truck wreck and would like to talk to us, we are always happy to schedule a free consultation with you.

Yesterday the United States Supreme Court ruled against an injured man and in favor of a medical device manufacture in an 8-1 ruling. The basis of the ruling was that the Food & Drug Administration (FDA) had approved the device so that consumers are not allowed to sue under state law claiming that the device was defective or that the warning was inadequate.

The excellent Washington Post article by Robert Barnes summarizes the case:

The court ruled 8 to 1 against the estate of a New York man who was seriously injured when a balloon catheter manufactured by Medtronic burst during an angioplasty in 1996. Charles Riegel, who died three years ago, and his wife sued under New York law, alleging that the device's design was faulty and its labeling deficient.

Justice Antonin Scalia, writing for the majority, said federal law preempts the imposition of liability under state laws for devices that have undergone the Food and Drug Administration's pre-market approval process, the most rigorous of the FDA's testing procedures.

Justice Ruth Bader Ginsburg was the lone dissenter. Congress did not intend the preemption clause, Ginsburg wrote, "to effect a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices."

The Washington Post article notes the basis for the majority's opinion (authored by Scalia) is

Allowing juries to award damages when something goes wrong, Scalia wrote, would be unfair. A jury "sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court," Scalia wrote. Patients "would suffer without new medical devices if juries were allowed to apply the tort law of 50 states to all innovations."

We are pleasantly surprised at the reaction among congress -

"The Supreme Court's decision strips consumers of the rights they've had for decades," said Rep. Henry A. Waxman of California, the chairman of the House Committee on Oversight and Government Reform. "This isn't what Congress intended, and we'll pass legislation as quickly as possible to fix this nonsensical situation."

The whole issue of federal preemption of state law is very active one that we will continue to watch as the more the courts find preemption the more state law claims are swept away without normally any federal claim being put in its place to compensate injured citizens of Alabama and other states.