California Personal Injury and Insurance Blog

Are you told to have spinal decompression? Be cautious

I have had a few clients lately who have been told that they need spinal decompression on a very expensive machine. The machine du jour is the DRX 9000. I am sure you have seen ads in your local newspaper about it. Here is a story from the San Jose Mercury News that should make you cautious about this procedure. (It is not often I post an entire article, but I cannot find a good link and this story has great information.)

Dale John Dorjath was willing to try just about anything to ease the debilitating back pain he had
suffered for years - even a machine recommended by his chiropractor that required strapping on Velcro girdles and being pulled in two directions.

"It sounded like it was well worth the money," Dorjath said. "But it didn't work. I had so much pain
afterwards, I literally couldn't walk."

Dorjath, a retired 64-year-old accountant from San Jose, said he was treated on a DRX 9000, one of the "spinal decompression" machines touted by some chiropractors as an alternative to surgery for
patients with herniated discs or other lower back problems.

While some patients report near-miraculous relief from the machines, the companies that make them and the chiropractors who buy them are coming under increasing scrutiny from local district attorneys and federal officials for fraudulent advertising and unproven claims of effectiveness.

Insurers won't cover the expensive treatment, also known as motorized traction, and mainstream medical experts say it isn't effective.

Last month, FBI agents raided Axiom Worldwide, the Tampa, Fla., maker of the DRX 9000. Also in March, a federal judge in Atlanta ordered Axiom to stop making false marketing claims.

In California, a number of district attorneys, including those in Santa Clara, Santa Cruz and
Monterey counties, are jointly investigating chiropractors' marketing of spinal decompression
machines including the DRX 9000. They expect to complete the investigation this summer. Penalties for local chiropractors could be harsh: Two Monterey County chiropractors were fined $25,000 each last year for deceptive advertising of the machines, although their fines were later reduced.

Company officials did not return repeated phone calls from the Mercury News. A Santa Cruz attorney for Axiom Worldwide, Paul Meltzer, said the issues were "under investigation" and declined to comment further. 

At least three South Bay chiropractors regularly advertise treatments on the machines in the Mercury News.

Intense competition

The spinal decompression industry is intensely competitive, with major players suing each other and their contractors over marketing claims and breaches of contract. The various machines look different but all purport to work by stretching the spine to increase the space between the spinal discs that act as shock absorbers between vertebrae.

At least 1,000 machines are in use in the United States under brand names such as DRX 9000, VAX-D, Accu-Spina and DRS, according to a trade publication called the Anesthesia & Pain Coders Pink Sheet, which has closely followed the industry. New machines can cost more than $140,000 while used machines - and $595 advertising kits - are easily found on eBay. Chiropractors have aggressively marketed treatment with the machines through newspaper ads and infomercials.

Some claims have gotten manufacturers and chiropractors in trouble. Ruling on a lawsuit filed by a competitor, the federal judge in Atlanta told Axiom to cease claims that the machine is based on NASA space research (it isn't) and that it's approved by the U.S. Food and Drug Administration (the machine was never evaluated for effectiveness, but grandfathered in because it's similar to existing medical devices).

Around the country, chiropractors also have been held accountable for making false claims and fraudulently billing Medicare and other insurers for the treatment. Last year, two Georgia chiropractors received near-three-year prison terms for fraudulently billing Blue Cross and Blue Shield of Georgia nearly $2 million for spinal decompression treatments on a VAX-D machine. Most insurers, including Medicare, do not cover the treatment. The chiropractors were accused of
falsifying the treatment provided to ensure payment.

Five months after his first spinal decompression treatment, Dorjath said, he still experiences random pain and tingling from his toes to his thighs. His rehabilitation physician believes the machine irritated the nerves around his spine and caused a disc to protrude from his spine, Dorjath said.

When Dorjath was considering the treatment in November, the $6,000 cost for 20 sessions on the
machine seemed expensive, but he was desperate. His already bad back worsened after an encounter with a flying golf ball. Dorjath had received steroid injections from his family doctor, but they weren't working anymore. And his toes were starting to tingle uncomfortably.

Dorjath liked his chiropractor's bedside manner and the fact that he really seemed to care about his pain. Brad Pluckhan, who has offices in Campbell and Gilroy, told Dorjath that the worst that could happen was that he wouldn't get better, Dorjath said.

When he felt pain after two weeks of sessions on the machine, he stopped treatment and Pluckhan refunded his money, Dorjath said.

But for weeks afterward, Dorjath said, he found it difficult to walk, play golf, get out of a chair and
turn over in bed. The two are now in arbitration over whether Pluckhan should make other reparations.

`Great addition'

Pluckhan told the Mercury News that the machines have been a "great addition" to his practice. The
chiropractor declined to comment on Dorjath's experience, citing patient confidentiality. But he
said that clients who have experienced problems with the treatment have not followed strict recommendations such as avoiding exercise, bending, twisting or pushing during the first two weeks of treatment.

That said, Pluckhan acknowledged, "We absolutely agree that this is not a one-hit wonder. It's not going to work on every patient."

Other patients of Pluckhan's, however, sing the machine's praises.

"After the third treatment, I could see a big difference," said Debbie Cino, 54, of San Jose. Cino
said an extra vertebra in her back made it difficult for her to sit or stand for long periods, and the
treatment helped. "I think it's wonderful," she said.

Doctors say that patients like Cino may have been helped by the machine, but it's also possible that the treatment provides a powerful placebo effect that relieves pain, they say. Some patients' back pain also resolves on its own, but patients may credit their spinal decompression instead, doctors say.

Ideally, medical studies would help answer those questions, but solid research on spinal decompression machines is skimpy at best.

Axiom's marketing materials have claimed that scientific studies proved the machines work to relieve back pain by up to 86 percent. But any studies showing a positive effect were either sponsored by other machines' manufacturers or were poorly designed. There is no published research on the DRX 9000.

Even a literature review co-written by Dr. Alex Macario, a Stanford University anesthesiologist and
researcher, and funded by Axiom Worldwide, concluded that the effectiveness of these types of machines for chronic low-back pain is "unproven."

Dr. Harley Goldberg, a Kaiser Permanente physician who oversees the health-maintenance organization's spine care services in Northern California, goes further and condemns the machines. Spinal decompression machines merely offer a new, mechanized twist on old-fashioned
traction for back pain - which rigorous medical studies have shown doesn't work, he said.

"My skin crawls when I see the ads, because they take advantage of people in pain," he said. "If spinal
decompression actually worked, we would all use it."

Seat Belt Excuses

I have heard a lot of doozies, but some of these take the cake. The Sacramento Bee is reporting on seat belt enfocement in Roseville, CA. The Roseville PD heard some great excuses, including that the doctor told someone not to wear a seatbelt. WOW!

It is very simple: when you get in the car, you put on your seat belt BEFORE you turn on the car. Just make sure everyone makes the seat belt "click" before you even turn on the engine. That way you don't have to worry about someone not having their seat belt on.

Having handled too many claims where someone has been injured or killed for not wearing a seat belt, trust me on this. This one simple act will make a world of difference.

Something A Little Fun

Something a little fun for a mid June day with beautiful weather. I have started a new blog. This one, however, is not law related at all. This is my root beer blog.  Give it a read and feel free to join the conversation about the soda that gets the least respect.

Oh, and if you are in the mood for legal writing, remember to check out my debt blog.

5 Totally Unsafe Car Moves

Parents magazine has a list in its July, 2008 edition with "5 Totally Unsafe Car Moves." Their top 5:

1. Climbing into the backseat, while the car is moving;
2. Picking up your baby while the car is moving;
3. Traveling with pets loose in the car;
4. Packing the car to the gills; (My car doesn't have gills, does yours?)
5. Forgetting to double-check the car seat.

I have to tell you, other than #3 and maybe #4, none of these ever come up. After three kids, I can not count any times when anyone climbed into the backseat to be with the kids. The idea never even cross our minds. Nor did #2 or #5. I have traveled with an old dog to the vet with him sitting next to me. And once in a while, we put a lot of luggage in the car for a road trip. (Although, with gas prices being so high, the road trips are done for a while.)

Here are my 5 totally unsafe car moves:

1. Putting on makeup while driving;
2. Shaving while driving;
3. Text messaging while driving;
4. Changing your clothes while driving;
5. Passing things between cars while driving.

Share your totally unsafe car moves with me. 

Liability: How is it determined?

In yesterday's post, I wrote about the proper investigation of an insurance claim: coverage, liability, damages. I am going to expand more on liability today. (Coverage is a lot more complicated. Liability is a better starting point for lay readers.)

Liability is basically "Who is at fault?" The easiest case to examine is an automobile collision. Two cars hit and someone must be at fault. How do you determine fault?

A good starting point is the police report. Why is it a starting point and not the ending point? Because a police report, in California, is not admissible evidence. A jury does not get to see the police report. Furthermore, the police report may be based on incomplete evidence, missing statements or may be inconclusive. But, it helps to start with the police report.

After reading the police report, the insurance company should talk to its insured. As an insured who has a claim made against your policy, you must cooperate with the insurance company. In other words, give them a statement about what happened. Answer the adjusters questions and give your side of the story.

After the insurance adjuster has talked to its insured, the adjuster should next try to talk to the other party. I recommend that if you are the "other party," you do not give a statement to the insurance company. It is not required. However, the adjuster will want to talk to you about the case. If no one is injured, you can talk to the adjuster. If there is an injury, DO NOT talk to the adjuster.

The adjuster should then talk to any independent witnesses. Someone's brother who was in the car is not an independent witness. An independent witness is someone who is not related to the parties, does not know the parties and saw what happened. Seeing the aftermath of a collision does not make a person a witness to what happened in the collision.

Finally, the adjuster should visit the scene of the collision. It is important to see where the collision happened, look for debris in the roadway or other signs. In the case of a disputed light, where each party says they had a green light, it is important for the adjuster to see the light and time the sequence of the light.

There, in a nutshell, is the proper method of conducting a liability investigation. Interestingly, a law firm should also speak to the parties, look at the scene and talk to witnesses.

In future posts, we will discuss liability and damages. Remember, if you have questions on an insurance claim email me.

Insurance Claims: An Overview of the Investigation

I get a lot of people who have questions about an insurance claim and do not understand why the claim is handled in a certain manner. Sometimes, the potential client has misunderstood. Sometimes, the adjuster has made a mistake. Sometimes, no one knows what is supposed to happen so no one has any idea what is actually going on. So, here is an overview of how a claim should be handled.

A claim is called in to an 800 number. (Some insurance companies take reports only from agents. Some insurance companies take reports online. Most have an 800 number to call.) A representative takes the basic information: name of the insured, policy number, time and date of the occurrence, etc.... The claim is then assigned a number and an adjuster. The caller should get this information on the phone.

When the adjuster gets a claim, the adjuster is supposed to handle the investigation in three steps:

1. Coverage. Is the claim covered? In other words, does the insurance policy have some exclusion that makes it so the event is not covered by the insurance policy. This could be an arson on a homeowners policy or a racing incident on an automobile policy. (Racing in your car on a track is not covered by your auto policy.) The adjuster will go through and determine if there is some reason the policy does not apply to the claim. If the claim is covered, the adjuster goes to step 2. If it is not covered, a denial letter is sent to the insured explaining why the claim is not covered.
2. Liability. Is the insured responsible for the damages? On an auto liability policy, the investigation means whether the insured caused the collision. On a homeowners liability claim, ie a slip and fall, the investigation is similar: did the insured do something to cause the incident or fail to do something to prevent it from happening? If the insured is liable, or partially liable, the adjuster goes to step 3. If the insured is not liable, a letter denying liability is sent to the other party.
3. Damages. What amount is owed by the policy? In a comprehensive or collision auto claim, the adjuster determines the repair cost, or if the repair cost is 80% or more of the replacement cost, then the replacement cost. In a liability claim for property damage, the adjuster makes the same analysis. In a bodily injury claim, the adjuster has to determine the extent of the injuries and the amount that would compensate the injured party for the injuries. This is where most arguments occur. What is a fair amount? How is it determined?

The short version: coverage, liability damages. Repeat. That is the proper method to handling an insurance claim. If you have an adjuster who wants to talk damages without knowing if the claim is covered, be afraid, be very afraid!

In future posts, I will go into detail on these issues and explain in more detail what should be done. 

Teens Still Use Cell Phones While Driving

I admit that I did not own a cell phone when I was growing up. I drove without a cell phone until my early 20s. However, today it seems like 10 year olds have cell phones. Yes, I actually know a 10 year old with a cell phone. 

Anyway, today's young drivers have cell phones. Not only that, but they use them - even when driving. Some states have tried to curb this by passing laws to limit teenagers use of phones when they are driving.  A new study shows that these laws do not actually change the usage habits of teen drivers.

Interestingly, or maybe not so interestingly, is that parent involvement has a bigger effect. If parents get involved and talk to their teens about the dangers of driving while on the phone, teens are less likely to use cell phones.

If you are the parent of a teen driver, make sure you talk to your child about the dangers of driving while on the cell phone. And feel free to tell them to call me if they want to hear it from someone who has personally seen the devastation caused by teens driving while talking.

I want you!

I want you! Actually, I want you to help me, but I am willing to offer something in return. Since we all know that you don't get things for free, you help me and I will help you.

Here's what you'll get. You will get a free review of your auto insurance. This alone is a $400 value. Since I am a generous guy, I am going to give you more. I will enter your name into a drawing for a really cool $50 VISA gift card that you can use anywhere VISA is accepted. I have one of these to give away.

So now that you know the prize - here's what I am asking in return. For every person you get to sign up for my newsletter, you get one entry in the drawing. If you get 10 people to sign up, that is 10 entries. I am providing you with with this link for them to sign up: 

Subscribe to the Law Offices of Jonathan G Stein mailing list.

After subscribing, make sure they email me at this new account with your name, your email address, their name and their email address so I can put you in the drawing. After all, if I do not know who referred them, then I cannot pick your name as my winner!

I want to be perfectly clear one on point: I am not looking for you to refer me new cases for this drawing. you refer me a new case, I appreciate it, but your name will not be entered into the drawing for that. The drawing will be held on June 13. I will announce the winners here and send you a private email. I want to have to increase my capacity for this service.

DISCLAIMER: One free entry per person by emailing me. (Its the law, you know!)