Dallas Fort Worth Insurance Lawyer Blog

If someone in Dallas, Fort Worth, Arlington, Grand Prairie, Mansfield, Hurst, Euless, Bedford, Duncanville, or anywhere else in Texas gets involved in an accident and someone besides themselves are at fault, what happens when health insurance pays for the medical bills resulting from the accident? The answer is one you are going to hate. The answer is: It depends.
There are many variables that come into play, some of which have been discussed in previous blogs. Today we are going to discuss what happens when a person's own personal health insurance company pays for the medical bills incurred as the result of someone else causing injury to you.
Typical health insurance companies are Blue Cross / Blue Shield, Humana, and other names you have heard about and often times this health insurance is provided as a benefit by your employer. The significance of employer provided health insurance is that many times the health insurance provided through employment is a federally regulated plan called Employers Retirement Income Security Act, otherwise known as an ERISA plan.
ERISA plans are in a category all by themselves and are often times very difficult to deal with. Other plans, that are not ERISA are usually much easier to deal with but can still be challenging depending on the language in the plan.
The Texas Supreme Court has held, that when someone else causes one to incur medical expenses that get paid by the injured person's health insurer, that the health insurer may be entitled to "first money" from a settlement. This may be the case even where the injured party has not been made whole by the policy proceeds from the person's insurance company who caused the medical bills to be incurred. By not "made whole" meaning the injured person still is short money due to lost wages and other damages.
The most recent, significant case by the Texas Supreme Court, is a 2007 case styled, Fortis Benefits v. Vanessa Cantu and Ford Motor Company. This case is a must read to have an ideal of how subrogation sometimes works.
Keep in mind - when someone else, a third party, causes you to be injured and incur medical expenses and you have health insurance that pays those medical expenses, then, when you recover from the person who caused the injuries you have a responsibility to pay back your health insurance. When your health insurance pays, they have paid for bills that the third party should have paid for. If you do not pay them back then you are getting a "double recovery." However, it should be quickly pointed out that sometimes this is okay, it just depends on the circumstances and the writing in the health insurance policy.
It is vital to have an experienced Insurance Law Attorney involved in these situations. If it is not handled properly, the person receiving the "double recovery" could find themselves being sued by their health insurance company. This is not uncommon. An experienced attorney, using properly legal means, can often times make this "double recovery" legal. But it is a situation where the "i's have to be dotted and the t's crossed."
Health insurance companies generally include a subrogation clause in the insurance contracts and the wording will vary insurance company to insurance company and policy to policy. But these contractual provisions creating a right of subrogation are valid and should be honored. This has been made clear by the Texas Court of Appeals, Eastland, in 1974, in the case, Group Hospital Service, Inc. v. State Farm Insurance Co.
Worse, some policies have provisions written into them excusing the health insurer from paying altogether if there is a personal injury claim arising from an injury, so injury claims increasingly do not involve health insurance.
One thing to bear in mind and make clear. These policies vary widely with an ERISA plan being the hardest to deal with in these situations. And an experienced attorney can sometimes make even the worst plans deal fairly with the injured person.

Am I paying too much for my insurance? Whether you live in Cedar Hill, Mansfield, Benbrook, Saginaw, Keller, Fort Worth, Dallas, Grand Prairie, Arlington, or some other place in Texas, that would be a question most people would ask at one time or another when thinking about their finances.
For a California woman, the answer to the above question seems to be, yes. She has sued Blue Shield of California, accusing the nonprofit health plan of overcharging thousands of policyholders who bought safety net insurance for peole who were sick or jobless.
This was reported by the Los Angeles Times in an article written by Duke Hefland and published on July 8, 2010.
The title to the article is, "Blue Shield of California is accused of overcharging for safety-net insurance."
A 64 year old lady by the name of Amalia Lample said in her lawsuit that Blue Shield, the state's second largest not for profit insurer, knowingly exceeded maximum insurance rates set by the state and falsely reported to regulators that the charges stayed within official guidelines.
Lample is argueing that she is owed $4,475 in excess charges she paid from 2007 to 2009. She also claims that more than 6,000 Blue Shield policyholders with similar coverage also were overcharged since 2001.
"This is for justice. It's not only for the money," said Lample, who decided to file her lawsuit in Los Angeles County Superior Court after reading a story in The Times about Blue Shield's rates. "It's not right what they do."
The lawsuit seeks class- action status. There has been no comment from the San Francisco company.
Blue Shield denied two refund requests by Lample, who filed a complaint with the California Department of Managed Health Care. Regulators said they could not conclude that Blue Shield had violated state law.
On Wednesday a department spokeswoman said the law's definition for calculating maximum rates was ambiguous, making it difficult to determine whether health plans were charging too much. As a result, the department is sponsoring a bill in the Legislature to "eliminate any question" on rates insurers can charge.
At issue is health coverage available under the federal Health Insurance Portability and
Accountability Act (HIPAA). Insurers are required by the federal law to sell insurance to people who have lost their jobs or who would otherwise be ineligible because of preexisting medical conditions.
HIPAA policyholders maintain that Blue Shield and one of its chief competitors, Anthem Blue Cross, have substantially overcharged subscribers for several years. Blue Shield says that its HIPAA rates comply with state guidelines.
Anthem, on the other hand, determined that it had overcharged customers between 2006 and 2009, and agreed to issue refunds.
As it relates to Anthem, one policyholder, Culver City attorney Les Greenberg, accused Anthem of returning only a fraction of what was due. Anthem had given Greenberg a $12 refund. He took the company to Small Claims Court. A judge agreed with Greenberg in September, awarding Greenberg with more than $7,300.
Greenberg filed another lawsuit in December on behalf of another Anthem subscriber, saying the insurer owed additional refunds to more than 10,000 HIPPA policyholders. Anthem issued a statement Wednesday saying its refunds were "appropriate."
Greenberg is also representing Lample in the lawsuit filed against Blue Shield.
"They have gone off on a lark of their own to overcharge their subscribers," Greenberg said of the two insurers. "I would call it egregious behavior."

Anybody with children in Grand Prairie, Arlington, Mansfield, Fort Worth, Dallas, or out in Weatherford would want to know how the new federal health bill is being interpreted by lawyers and insurance companies. This was the topic of a recent article in The New York Times.
The article is titled "Coverage Now for Sick Children? Check Fine Print." This article was published on March 28, 2010. This was right after the new federal health care law was signed into law by President Obama.
One selling point for the new law was that pre-existing conditions coverage for children would immediately go into effect. The reality is that it probably does not. The health insurance companies agree that they must cover pre-existing conditions for children already covered by a policy of insurance. That has consistently been the case. But, the health insurers argue that the new law does not require them to write new insurance for a child and it does not guarantee the "availability of coverage" for all until 2014.
The insurance company attorneys insist that the fine print in the law differs substantially from the larger political message. The companies are required to cover pre-exisiting conditions for children if a policy is sold but they are not required to sell a policy. Plus, the health insurance company could increase premiums to cover the additional cost.
As stated in the article, Senator John D. Rockefeller IV, Democrat of West Virginia and chairman of the Senate commerce committee, said: "The ink has not dried on the health care reform bill, and already some deplorable health insurance companies are trying to duck away from covering children with pre-existing conditions. This is outrageous."
Karen L. Pollitz, a research professor at the Health Policy Institute at Georgetown University, is quoted as saying, "If you have a sick kid, the individual insurance market will continue to be a scary place."
National Association of Insurance Commissioners experts, share this concern.
What happened in the past and what will probably continue to happen until 2014, when the law mandates coverage, is that a health insurance company will simply deny coverage not only for the child but the entire family, instead of refusing to cover treatment for a specific pre-existing condition.
White House spokespeople say the administration planned to issue regulations setting forth its view that "the term pre-existing applies to both a child's access to a plan and his or her benefits once he or she is in a plan." Lawyers agree the rules could be challenged in court if they went beyond the law or were inconsistent with it.
The New York Times article is a good read for pointing out a few other inconsistencies betweent the politicing and what the actual bill says.

It would be interesting to see if what happened out west, would happen here in Texas, with a resident of Grand Prairie, Dallas, Arlington, Fort Worth, Mansfield, or Weatherford. It probably depends on your insurer.
The Los Angeles Times ran an article on March 15, 2010, about a health insurer in California. The title of the article is, "Anthem Blue Cross Should Reimburse California Man For Transplant, Jury Says".
This article tells about a Los Angeles jury finding that Anthem Blue Cross (Anthem) should cover the cost of an out-of-state liver transplant that a California man paid for after Anthem Blue Cross balked at paying. The liver transplant cost $206,000.
The facts in the story said that the California man who needed the transplant, had already been approved for a liver transplant by Anthem, but he had been put on a waiting list by the UCLA Medical Center. While on the waiting list, the man became gravely ill and fearing for his life, decided to have the operation in Indiana, where the wait times are far shorter than in California.
The jury panel, which included at least three members who had Anthem medical coverage, voted that the company had breached its contract with the man by not paying for the liver transplant simply because he had the surgery out-of-state.
As a continuation of this verdict, there is a hearing next week where the man's attorney will seek to broaden the jury's verdict under the California's unfair competition law, to allow Anthem's members to pursue organ transplants at hospitals nationwide, that do business with Anthem's parent company, Wellpoint Inc., the nations largest health insurer.
It is interesting that Anthem in a statement acknowledged that the transplant should have been approved despite the fact that the health insurance contract states that transplants must be performed only at California Centers of Excellence.
In the jury verdict, the California man was also awarded attorneys fees which could far exceed the $206,000 verdict. It is noteworthy that the man was offered an amount in excess of the verdict prior to the trial, which he turned down. The man and his attorney were seeking punative damages against Anthem, which the jury refused to find.
The man claims that the lawsuit was not about money. He pledged before the trial to donate any winnings to liver research. His goal was to get Anthem to stop denying out-of-state transplants.

Everybody in the Dallas, Fort Worth area, including Grand Prairie, Arlington, Mansfield, and out in Weatherford have some form of health insurance. The majority of this insurance is private plans.
The Texas Supreme Court decided a case in 1994 that still has relevance today. The style of the case is, Union Bankers Insurance Company v. Thomas D. Shelton and Ann Shelton. The issue in the case dealt with misrepresentation in the insurance policy application.
Here are the facts. In April 1988, Mr. Shelton applied to Union Bankers Insurance Company (Union) for a health insurance policy. Mr. Stone completed the application with the agent's assistance. In response to certain medical history questions, Mr. Shelton indicated that he had never been treated for, and had no indications of, any disorders of the skeletal or muscular systems. Union subsequently issued a policy. Seven months after the policy was issued, Mr. Shelton underwent a total hip replacement to correct necrosis of his left hip joint. He then filed a claim for benefits. Union denied the claim, saying that the necrosis was an undisclosed pre-existing condition.
The Sheltons sued Union and its agent, alleging breach of contract, violations of the Texas Deceptive Trade Practices Act and the Texas Insurance Code, and breach of the duty of good faith and fair dealing. A jury trial resulted and failed to find that Mr. Shelton intended to deceive Union by misrepresenting his condition. The lower appeals court found that Union had breached its contract as a matter of law and remanded the case to the trial court for further findings concerning whether Union breached the duty of good faith and fair dealing in connection with its cancellation of Mr. Shelton's policy.
Union argued that Texas Insurance Code, Section 1201.208, allows an insurance company to cancel a health insurance policy within two years from the date of its issuance on the basis of an insured's innocent misrepresentation in the application for insurance. Union also pointed to policy language that allowed them to do this.
In a further appeal, the Supreme Court pointed out that, Texas Insurance Code, Section 1201.272, says that a misrepresentation in an application for any type of insurance must be material in order for an insurance company to avoid the policy. The idea that an insured's intent to deceive is likewise required is well established in Texas law.
The Supreme Court stated, "It is now settled law in this state that these five elements must be pled and proved before the insurer may avoid a policy because of misrepresentation of the insured: (1) the making of the representation; (2) the falsity of the representation; (3) reliance thereon by the insurer; (4) the intent to deceive on the part of the insured in making the same; and (5) the materiality of the representation."
All of the cases in Texas properly stand for the proposition that, in Texas, an insured's intent to deceive must be shown in order for an insurance company to successfully raise a defense of misrepresentation on the basis of a false statement made by the insured in the application for any type of insurance.
The Supreme Court ruling was - "We hold, therefore, that an intent to deceive must be proved to cancel a health insurance policy within two years of the date of its issuance when the cancellation is based on the insured's misrepresentation in the application for insurance."
When someone has their health insurance policy cancelled within two years of it being obtained, or for that matter, anytime after it has been obtained, it is important that an experienced Insurance Law Attorney be consulted to make sure the cancellation is proper. Insurance companies often rely on the reality that most people will not truly fight the decision the insurance company makes. Most people will call the company or their agent and complain but will not take any action beyond filing some sort of complaint.

It does not matter where in the State of Texas that you live. Whether you are in a small community like Weatherford or in the middle of the Dallas, Fort Worth, area, in cities like Arlington or Grand Prairie, you will see rate increases in your health insurance.
In the state of California, a consumer group filed a lawsuit on March 1, 2010. This was reported by the San Francisco Chronicle. The article is found in the health care section of the paper and is titled "Anthem Blue Cross Sued Over Rate Increases". The lawsuit alleges that Anthem Blue Cross, by raising rates, was forcing policy holders to move into other policies with higher deductibles and lower benefits.
The consumer group, called Consumer Watchdog, accuses Anthem of violating state law by failing to offer policy holders comparable coverage and minimized rate hikes after the company directs customers to alternative plans when closing existing plans. One lady in the lawsuit, said the company offered her the option of switching to a policy with a higher deductible and skimpier benefits by a specific deadline, but also told her she could stay in her current policy. The company then notified her of the enormous premium increases in her plan after the deadline for switching had passed.
The lawsuit, which was filed in Ventura County, effects about 800,000 people. Anthem, which is owned by WellPoint Inc. has come under state and federal scrutiny for hiking its 800,000 individual policy holders, or those not covered through a group plan, by as much as 39 percent.
One piece of good news is, the company has agreed to delay the rate increase that were taking effect on Monday, until May 1, to allow the state time to investigate.
The lawsuit also accuses Anthem of forcing older and sicker members, who are unable to switch carriers, to pay higher and higher premiums until they accept inferior coverage or drop coverage altogether.
As further information, another lawsuit was filed in San Mateo County Superior Court, on February 11, accusing the insurer of unfair competitive business practices.

All over the Dallas, Fort Worth, Arlington, Grand Prairie areas and even out in Weatherford in Parker County, are immigrants. What many people fail to understand because of all the media coverage on illegal immigration in the United States, is that there is a large and growing number of legal immigrants in our country.
A newspaper in Massachusetts recently ran an article about health insurance and legal immigrants. The newspaper was The Boston Globe. The title of the article is "Immigrants Sue State Over Exclusion From Health Care".
The State of Massachusetts, prior to 2006 provided health care to legal immigrants. According to the article, in an effort to save money, the legislature voted to eliminate coverage to about 26,000 immigrants. About a third of the money cuts were restored and the immigrants were given a stripped down health care plan with significantly higher copayments for medications and other treatments.
Since 2006, more than 8,000 more legal immigrants had become eligible but were denied coverage. The reason for the denial of coverage was because the same law that restored the third coverage also capped future enrollment.
This insurance is called Commonwealth Care. The state's Connector Authority and its executive director, Jon Kingsdale, are named in a lawsuit, accusing each that they violated the immigrants' right to equal protection under the state and federal constitutions when the administrators cut coverage in the Commonweath Care program.
The article in the Boston Globe gives two examples of legal immigrants being effected by the state's denial of health insurance benefits. The first example is a 51 year old immigrant from Zimbabwe with college degrees in psychology and business management, who was a project manager in London before coming legally to the United States. She was denied coverage in the Commonwealth Care program and she suffers from oral health infections, vision loss, and kidney and heart problems.
The second example is a legal immigrant from the Phillippines. She is a licensed architect with a master's degree in building science. She has breast cancer and is unable to find cancer specialists from the list provided to immigrants in the state's stripped down health plan.
The Massachusetts Immigrant and Refugee Advocacy Coalitions is attempting to assist in the lawsuit.

People living in Grand Prairie, Arlington, Dallas, Fort Worth, Weatherford, or any where in Texas or the nation have a hard time understanding how their health insurance works when it comes to paying medical providers. This is particularly true with the "out of network" medical providers involved in a health claim.
The Palm Beach Post recently published an article. The article addressed the possibility that a class action lawsuit was going to get traction against some of the larger medical insurance companies. The Palm Beach Post article is titled "Lawsuits Filed Against Blue Cross Claims Reimbursement Rates Kept "Artificially" Low".
The first line in the article starts out; "Ever wonder why your insurance company claims a procedure that cost you dearly could be gotten for a fraction of the price you paid?" An example of this is given in the article where a Palm Springs resident was charged $1,210 for an MRI. Blue Cross said the cost should have been $419. Since he had not met his deductible, it would not cover the MRI. Further, it would not allow him to claim the full amount toward his deductible.
The lawsuit, which was filed in United States District Court, claims this happens because the so-called "usual, customary and reasonable rate" most insurance companies use to determine how much they will pay are "rigged to artificially deflate" the cost of the treatment. This practice effects consumers who use doctors who do not participate in their health insurance plans and the physicians who provide so called out-of-network services.
Some of the insurers who use the same methods as Blue Cross include, United Healthcare, Aetna and Cigna. They use the same flawed ways of calculating rates as Ingenix, a Minnesota based health data company.
As the article points out, these same insurers and Ingenix last year, agreed to pay a total of $100 million to help start a nonprofit to determine how much insurance companies should reimburse patients who see out-of-network doctors. This agreement was worked out to settle lawsuits filed by the New York Attorney General office. The database that will replace Ingenix, will not be in place until later this year.

Very few people doubt that the face of America is changing in that more and more companies are changing the way benefits are provided to employees. The automotive industry is probably the biggest example of this change. Along with the automotive companies themselves, the changes effect all the companies that are intertwined with the big auto companies.
But it is not just the automotive companies. The same is happening in the airline industry, other transportation companies, and all phases of manufacturing. These changes include changes to wages, health care, retirement, and other benefits.
NewPage Corporation is a company that makes paper products. The Dayton Daily News recently ran an article wherein it reports on a change being made by NewPage in the way it handles health-care benfits for its premiums as it relates to their retirees.
The Dayton Daily News article is titled "Retirees sue NewPage Corp. over health benefits". The article reports that retirees of NewPage have filed a class-action lawsuit in federal court against NewPage over its plans to phase out subsidies for their health-care premiums. The lawsuit alleges that NewPage's decision breaches collective bargaining agreements for workers in its Wisconsin paper mills.
What appears to be the reason for the lawsuit is that NewPage is reducing the subsidies that employees over 65 years old and who retired after 1985. In 2010, retirees will receive 66% of the premium subsidy they received this year, then 33% in 2011 and then will disappear in 2012.
The company says these changes are required for the company to stay in business.

This blog does not try to spend time on the health care debate occurring on the National scene. Rather the focus here is to make people aware of their rights as they relate to their dealings with insurance companies and why they need an experience Insurance Law Attorney when faced with a problem when dealing with an insurance company. The occassional news item is thrown in when it relates to a large number of people, some of whom may be in Texas.

Recent articles on the Chinese drywall, sold by Knauf Plasterboard Tianjin, affecting many residents along the Gulf Coast pointed out that new construction and remodeling done after hurricanes hit the areas on the Gulf Coast have left many homeowners in rough financial situations. This is because many insurance companies refuse to cover the losses resulting from using this drywall.

One recent article points out that the deadline for involvement in a national class action lawsuit against Knauf Plasterboard Tianjin expired on December 2. This lawsuit involves about 35,000 Florida homes where about 30 percent of the installations of this drywall are believed to have occurred.

The other article, from the Miami Herald, discusses some health problems resulting from the corrosion of the faulty Chinese drywall. The Consumer Product Safety Commission said there is a link between the imported material and problems with corrosion in homes that have it.

As for the health care debate, a report released by the office of Texas Senator John Cornyn says that health care costs for the average Texan will increase 61% over 5 years. This release cites an Oliver Wyman report.

Another article recently in the news from the Associated Press, has a title talking about limiting insurance company executive pay. The article also discusses many other issues in the health care debate that would be of interest to someone trying to stay informed on the health care debate.

An interesting case has recently been reported in The Boston Globe. It is a lawsuit about whether or not the State of Massachusetts should be providing insurance coverage for adjunct professors in the public higher education system.

Rather than getting into a discussion about the insurance that a business or governmental agency should be providing its employees let us talk about a specific issue that comes up in health insurance situations. Most of the time when someone buys health insurance they are going to be required to fill out an application which asks questions about the applicants past and present medical conditions.

Almost every health insurance policy is going to have conditions that are not covered by the insurance. The conditions will be pre-existing conditions and also conditions that "manifiest" themselves within 30 days of the inception of the policy.

One Court that has dealt with this issue was in the case, Benefit Life Ins. Co. v. Mizell. In this case the health insurance policy had a provision that contained a "thirty day inception delay", which stated that the policy did not cover expenses resulting from a covered sickness that first manifests itself within thirty days after the effective date of the policy. The effective date of the policy in this case was April 10, 1993. On a date thirty one days after the effective date of the policy, Mizell was treated for complaints of a knot about the size of a marble in the muscle of his arm. It was at first thought to be a ruptured biceps tendon. It was later diagnosed as cancer.

Benefits Life refused to pay Mizells' medical expenses and a lawsuit was filed. Mizell won at trial and was compensated $108,652.62. Benefit Life appealed this ruling.

On appeal the trial courts decision was affirmed. The Court reasoned that an illness will ordinarily have its inception for policy purposes "when it first becomes manifest or active or when there is a distinct symptom or condition from which a medical person can, with reasonable accuracy, diagnose the disease". The Courts said a condition does not necessarily commence when its medical cause began or has its origin but when it becomes manifest or active. The Court defined "manifest" as, readily perceived by the senses and especially by the sight.

In Mezell, the cancer was not manifest within thirty days of the effective date of the policy period. The Court went on to say that the diagnosis must be solely predicated upon distinct symptoms and conditions that Mezell presented during the thirty-day period and not upon testing procedures performed later.

Health Insurance cases can be complicated at times. Usually the case rests not only on the policy language but also on the medical recorders. The medical providers making good records of the dates of treatment and the procedures performed have a lot to do with the success or failure of a claim being denied if a lawsuit is subsequently filed.

Did you know that there is a law in Texas which requires a health care service provider to bill the patient or other responsible person for services, not later than the first day of the 11th month after the date the services are provided. This law is found in the Texas Civil Practices & Remedies Code, Section 146.002.

Whether a patient receives care at a hospital or clinic in Dallas, Texas, or in Arlington, Grand Prairie, Weatherford, or anywhere else in Texas, the health care service provider is required to bill the patient or the issuer of health benefits plan for services within the time frame set out above. An exception would be the unlikely event that the contract between the health care provider service provider and the health care insurer provide a longer time to submit the bill for services. It is an unlikely for this exception to exist because from a practicle standpoint, no health care service provider is going to sign a contract requiring them to wait longer than 11 months before getting paid.

If the health care service provider is required to directly bill the third party payor who is operating under State or Federal law, including Medicare and Medicaid, the requirement is the same as stated above.

The context under which a health care service provider does not immediately bill for their services is usually going to arise in two situations. The first is, they forget about it. In other words the patient is seen and treated and the paperwork gets lost or set aside and the office simply makes a mistake in not sending in the bill for services. The second way it arises is where the provider learns of or believes the treatment arises from an accident wherein a 3rd party insurance company is going to have to pay the medical expenses of the injured patient. The normal situation for this is in the car wreck cases.

In a car wreck situation the medical provider treats the injured party then sends them the bill rather than billing the injured persons insurance provider. The health insurance company, whether it be a company like Blue Cross / Blue Shield or Humana, or Medicare or Medicade is going to pay substantially less on the bill because of the discounts they get. The 3rd party insurance is not entitled to the discounts and thus may be liable for much greater amounts including the total bill. Discounts can be as high as 90%. At first this may seem ok but, what if, in the end, say a year later, there is not a recovery in the car wreck from the 3rd party insurance company.

When Section 146.002 is violated, then Section 146.003 becomes applicable. Texas Civil Practice & Remedies Code, Section 146.003 says when 146.002 is violated, the health care service provider may not recover from the patient any amount that the patient would have been entitled to receive as payment. This means that the debt goes away.

This is another example where an experienced Insurance Law Attorney can make sure that a person is not taken advantage of, by an insurance company or a health care service provider.