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."

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. 

FAQ: Where does 1/3 of the settlement go?

I have been asked lately about how a settlement breaks down. A lot of people seem to think that there is about 1/3 of the settlement that they never see. Let me see if I can help.

When you settle a case, there is a fee agreement with your attorney. Your attorney may take anywhere from 25 percent to 40 percent (some take more). Assume that your attorney takes thirty three percent (1/3) of the settlement. That leaves 67 percent (2/3) of the settlement. Then the attorney tells you that you get half of that, or 1/3 of the settlement. Where does that other 1/3 go?

Well, in most cases, your doctor or health insurance must be reimbursed. You received treatment for your injuries. The doctor may have treated you on a lien. In that case, the doctor gets paid back. Or, your health insurance may have paid for your treatment. In that case, it may need to be paid back.

In any event, you should ask your attorney for a breakdown of the settlement. He or she should show you where ever cent of your settlement goes.

Telemarketers and Collisions: YUCK!

Well, I was going to use a stronger word, but decided against it since this is a family blog. WOAI in San Antonio has a story on its website about telemarketers who call people who have been in collisions and try to get these people to sign up with attorneys.

Technically, the telemarketer tells the person to go see a clinic to be evaluated at. The clinic then refers the client to the attorney. However, same end result: someone who has been in a collision ends up being called by someone trying to get the collision victim to hire an attorney. It is absolutely disgusting.

This should be perfectly clear: you should make the call to the attorney - not the other way around. If an attorney, or anyone, calls you after a collision, you should not hire that person. It is that simple. You may need an attorney. You may not need an attorney. But, only you know that.

So, do not fall prey to these predators. This disgusting behavior should be outlawed in all 50 states. And every decent trial attorney should support that!

Diminished Value of Your Car

Everyone knows the old saying that a car is worth less after a collision. (Notice I am not calling it an auto accident anymore. Why? An accident just happens. A collision is someone's fault. When two cars collide, it is someone's fault.)  The question is can you recover that lost value, and if so, how much is that claim worth?

The simple answer is that you can recover that lost value. The problem is that it becomes a cost/benefit analysis. Does the benefit of making a claim outweigh the cost? For example, if the lost value is $500 and the cost is $600, it does not make sense. If the lost value is $10,000 and it will cost $1,000, then it probably does make sense.

So, if you decide that it makes sense to pursue, how do you determine the lost value. The first step should be to consult this website, a free tool to determine the lost value, or diminished value, as they like to call it. Once you have an idea about the value, you may want to submit it to an insurance company and make the claim. If they deny it, you would then need to retain an expert and you can determine the cost/benefit at that point.

By the way, you may have to educate the adjuster about your ability to recover diminished value.   

Allstate turns over documents - well, some

I wrote a week ago about Allstate's refusal to turn over documents to Florida regulators and the subsequent banning of Allstate from writing policies. The ban lasted a day until Florida's Appeals Court overturned it.

Yesterday, Allstate turned over documents. Well, some documents. Allstate is apparently turning over the documents in "waves." I am not sure if Allstate's spokesperson sees the pun there. After all, it is Allstate. (Waves, as in, from the ocean, which damage many Florida properties during hurricane season.)

In the meantime, Florida is going to court to try to get the Appeals Court to overturn its last decision and uphold the ban. Allstate, meanwhile, is arguing that its license can never be suspended unless the safety and welfare of Floridians is at risk. Fascinating argument, but seems weak to me.

By the way, kudos to the Palm Beach Post and Randy Diamond for great coverage of this continuing story.

Farmers, Small Claims Court and SHEESH!

Farmers Insurance is at it again! Yep, good old Farmers. Farmers, apparently, "Gets you back where you belong." Well, maybe it should be "Gets in you the back all along." (Hmmm....anyone see a future career writing jingles?

I have a client who could not settle her case with Farmers. She filed a lawsuit against their insured in small claims court. The judge ruled in her favor and a judgment was mailed out. Simple enough. Thirty days elapsed and no reply from Farmers. I told her to wait a few more days to see if the check was in the mail.

Well, it turns out that Farmers left her a message thirty seven days after the judgment came down. Farmers decided, instead of paying her, to pay the court. (A defendant who loses can pay the court in small claims court.) It will cost them an extra $25. Not a big deal, right?

Well, the catch is that the court will hold the check for 30 days. Then, it will take 4 to 6 weeks to issue a new check to my client. The result: my client doesn't get her money for 90 to 120 days after the judgment.

Why does Farmers do this? Beats me. A few options: 1. Farmers is really desperate to keep its money and needs to earn interest for that extra 30 days. 2. Farmers really doesn't want to help people. 3. Farmers wants to try to discourage people from suing their insureds in small claims court.

SHEESH! Farmers deserves some award for bad service for this nonsense.

Adjusters and their new (old) tactic

Amazing new tactic from the insurance industry. Okay, it is not new, but it was dead for a while. So, amazing revival tactic from the insurance industry: talking you out of an attorney. Here is how it works.

You are in a collision. The insurance company calls you and you say "I am going to hire an attorney." In some cases, you have retained an attorney and the adjuster tells you he/she is not aware of that fact. What happens?

The insurance adjuster will explain to you why you don't need an attorney. The adjuster tells you that the claim settles faster without an attorney, sometimes in weeks, not months. The adjuster then tells you how the attorney is just taking money out of your pocket because the settlement does not increase with an attorney. And the adjuster starts to tell you how evil plaintiff's attorneys are.

Well, the adjuster is wrong, wrong and wrong.

Cases do not settle faster without an attorney. In fact, some insurance companies are known to delay a claim until the statute of limitations expires, or is about to expire, before even making an offer. Once the statute of limitations expires, your claim expires too! Furthermore, a claim cannot resolve until you are recovered. The adjuster's desire to pay you before you recover from your injuries should be a sign that the adjuster is out to screw you.

Settlements do increase with an attorney. You do not know what your case is worth. The adjuster, in theory, does. The adjuster will never offer you full value and will have one hundred excuses why your case is not worth what you think it is or why the adjuster is right. It takes experience to figure out what a case is worth.

Trial lawyers are not evil. In fact, we level the playing field. We make sure someone is looking out for your best interest. It sure is not the insurance company doing that.

Be careful when you see this tactic. It should warn you that the adjuster is being less than honest and is trying to hide something. At the very least, you should get a free consultation before you talk to the adjuster.