Mr. Arsenault will lead the Insurance, Tort, Workers’ Compensation and Admiralty Law Section’s “What’s Been Happening During the Year – While You’ve Been Practicing Law” seminar.  He will be joined by three federal judges.  They will discuss recent jurisprudential developments, and how they’ve impacted the practice of law.

Arsenault is an active and respected member of the Louisiana State Bar Association.  He is frequently asked to organize and address state-wide legal conferences for the association, including annual Admiralty Symposiums, Mass Tort Symposiums and special topic seminars, like the 2010 LSBA Gulf Coast Oil Spill Symposium.  Additionally, Arsenault convenes a discussion panel composed of respected legal figures and federal judges each year at the LSBA Annual Convention in Destin, FL.

The sixth annual national test gauges driver knowledge by administering 20 questions taken from state Department of Motor Vehicles exams. Kansas drivers ranked first in the nation (82.3 percent average score); New York drivers ranked last (70 percent average score).

Overall, the test scores indicate a large number of licensed American drivers continue to lack knowledge of basic rules of the road. Eighty-five percent could not identify the correct action to take when approaching a steady yellow traffic light, and many remained confused by the appropriate safe following distances. Is it any wonder that car accidents, especially those involving serious injuries and fatalities continue to be a serious problem? With this number of ill-prepared drivers we certainly cannot expect insurance rates to decline anytime in the near future.

We need to wake up to these realities and formulate better training for young drivers, stricter testing for new drivers and elderly drivers with health issues, as well as re-training for drivers who have a record of causing multiple auto accidents which involve injuries to others.

The report by the Missouri Department of Insurance indicated that as many as 70% of claims remained unpaid after 90 days in many parts of the state, with rural areas facing the most significant delays. Rep. Tim Jones (D) who sponsored the prompt pay legislation, praised the health care providers and his Republican colleagues who joined him in working together on the bill.

Anyone who has experienced the frustration of having endless delays and excuses by insurance companies in failing to pay legitimate claims timely should be cheered by this result in Missouri and support similar legislation in their own state. For too long insurers have held the American public hostage with red tape, bureaucratic unintelligible policy language and endless delays in payment all the while raking in millions of dollars in profits. Kudos to Gov. Nixon and the Missouri legislature for their courage and leadership on this issue!

For too long personal injury trial lawyers have been the recipients of a well-funded and well-orchestrated public mis-information campaign by insurance and business interests trying to make the ordinary citizen believe the courts are being inundated with frivilous lawsuits which result in higher insurance premiums. The term “frivilous lawsuit” has become synonymous with that of the “tort reform” ilk also backed by big business interests. The truth is, that most of the litigation in this country is between businesses and insurers suing each other, not innocent victims of auto accidents, medical malpractice, defective products, dangerous drugs and medical devices or drunk drivers trying to get their just compensation for their injuries.

As the editors concluded, there is no compelling legal principle on which the new health care law can be successfully challenged. Neither is there any factual or compelling evidence that frivilous lawsuits are clogging our court system. I was taught not to call anyone a foo,l but The Advocate calls this challenge a “fool’s errand”…and I agree. Just look at the real reason for the governor’s support for the lawsuit: Jindal’s call for campaign contributions to support his campaign for reelection and “to continue the fight for our rights against an overreaching federal government”. Now who’s fooling whom?

Medicare Advantage costs the government more and is a prime target for cuts in the health care overhaul proposals. The Center for Medicare and Medicaid sent a cease and desist order to Humana and warned other private health insurers not to attempt to try anything similar. CMS was concerned that the information was misleading and confusing to patients and appeared to be an official communication about the Medicare program.

Naturally, the insurance industry trade group America’s Health Insurance Plans expressed outrage at the government’s action and issued yet another tirade against health care reform. Insurance reform of all types is desperately needed- in health care as well as liability, medical malpractice, property and casualty- you name it. It is a shame that giant insurance conglomerates stoop to scare tactics, especially directed at seniors to achieve their political goals and continue the status quo.

Health insurers continue to rake in billions of dollars in profits each year. Increased competition and insurance options is what will reduce premiums, increase benefits and enlarge access to medical care. Scare tactics have resulted in consumers losing many of their litigation rights in the areas of products liability, medical malpractice, worker’s compensation and punitive damages. Without these checks and balances on insurers, manufacturers and large corporations, the little guy, including the elderly are the ultimate losers.

So why is it that one of the most important sectors of our national economy is one of the least regulated, unaccountable and most profitable industries? Because these insurers are exempt from federal anti-trust laws, and most state insurance departments have little or no control over insurance rates.

Perhaps the most telling fact is how influential these insurers are in Washington D.C. and every state capitol due to the army of well-paid lobbyists and political contributions. They use the threat of their capability of inflicting major damage to a state’s economy so they routinely get what they want legislatively. Rarely do their demands on lawmakers get challenged.

One example happened in West Virginia when all five medical malpractice insurance companies threatened to pull out of the state unless regulatory laws were repealed. The West Virginia legislature promptly caved to the political pressure and repealed the legislation which they had enacted to protect W.V. consumers. As Joanne Doroshow of the Center for Justice & Democracy recently lamented, “Doctors complain of price-gouging by their medical malpractice insurers but do not join with consumer groups to push for industry regulation.” Apparently the medical profession would rather blame the legal profession and support “tort reform” instead. They ignore the insurance industry’s own admission about the lack of savings from “tort reform”. The vice president of the American Insurance Association admitted: “The insurance industry never promised that tort reform would achieve specific premium savings.” Despite that we are constantly inundated with “tort reform” rhetoric from lawmakers and their industry backers instead of taking on the insurance companies directly.

All of us- doctors tired of high medical malpractice premiums, business owners sick of paying exorbitant property-casualty insurance premiums, homeowners who face annually increasing rates despite never having made a claim- should target the real culprit in this ever-growing problem: the insurance industry. We should urge our national lawmakers to revoke their anti-trust exemption and face competition like every other industry. We should pressure our state legislators to enact common sense regulations and actually enforce them. No one expects the insurance industry not to make a profit. What we should not expect is for that profit to be on the backs of the consumers who only want and deserve affordable insurance.

This is not Nationwide’s first involvement with stiffing its customers. In June 2009, Nationwide agreed to settle another class action lawsuit which alleged the company did not pay homeowner policyholders enough to cover repair costs on eligible claims for a period of 13 years.

During the years of these overcharges and underpayments, Nationwide, a Fortune 500 company, was experiencing exponential growth and huge profits. At the end of fiscal year 2007, Nationwide posted a profit of almost $2 billion.

We desperately need insurance reform in this country- in health insurance, liability insurance, malpractice insurance, in fact, in all types of insurance. For too long insurers have consistently raised premiums while devising ways to cherry-pick customers, underpay claims and apparently to systematically overcharge their unknowing customers. Common sense regulation and real enforcement are long overdue.

The defendant driver had admitted his liability for colliding with the plaintiff which resulted in multiple injuries including a shattered pelvis, fractured forearms, broken leg and vision loss.

Jury verdicts such as these send a clear message to bar owners they will be held responsible for injuries to innocent victims of drunk drivers who drink to excess and are allowed to leave the bar and drive. Bar and tavern owners can no longer turn a blind eye to the obviously intoxicated patron who continues to want to buy drinks. The number of drunk driving accidents resulting in serious injuries and death are rising. We must all do our part in stopping this activity. Patrons must know the amount of alcohol they can consume and legally drive or designate a non-drinking driver. Bars must be vigilant about their intoxicated patrons and refuse to serve them and make sure they are not driving.

And the negligent insureds are getting “mums the word” advise from their insurers. According to Insure.com, one driver apologizing to the innocent victim is a “huge mistake that can affect the outcome of an insurance claim.” More and more insurers are cautioning their insureds to be careful what they say after a car wreck or when filing an insurance claim. Wonder whatever happened to old “the truth is the best policy” moral we all learned as kids. I guess that’s too old-fashioned for this never-take-the-blame-for-anything generation.

Doctors who are on the front line of the health care crisis are tired of fighting with insurers who have employees referred to as “blockers” whose jobs exist solely to deny, defer or obstruct paying benefits for services clearly covered by the patient’s policy. Doctors are too often having to employ extra personnel just to deal with the insurers and help the patients understand their medical insurance coverage.

Doctors may differ on the various proposals including a public option, but many agree that the country desperately needs significant health care reform. Doctors fed up with insurance delays and red tape are leaving the profession. By 2025, according to an AMA study, the country will be short about 124,000 doctors if current trends continue. Add that issue to the growing number of uninsured patients we have now and the crisis currently affecting all of us is only going to get worse.

Under the Bush administration there has been a steady erosion of an injured person’s right to recover damages for his injuries. The heavily-financed lobbyists for the insurance industry, big corporations and pharmaceutical manufacturers took full advantage of the Republican control of the White House and Congress. Even though the voters have replaced Republicans in the Senate, House and White House with Democrats, the GOP continues to oppose legislation the majority of Americans need and want for the sake of their political contributors.

Just last week House GOP Leader John Boehner claimed over $100 billion a year could be saved by less defensive medicine being practiced if real medical malpractice reforms were passed. The CBO’s analysis proves his claims are nowhere close to being accurate but that hasn’t stopped him from continuing to say it. In an October 9 letter to Republican Senator Orrin Hatch, CBO Director Douglas Elmendorf said the savings in the total national health care spending if limits on malpractice were enacted would amount to less than 0.5%. Even after the CBO report was released, Senator Jon Kyl (R-AZ) continued the misinformation blitz on the Sunday talk shows. “Almost everybody agrees that we can save between $100 and $200 billion if we have effective medical malpractice reform,” he said.

Why should we continue to accept limitations on our rights just to protect the bottom line of wealthy corporations, insurance companies and manufacturers? We’ve given up too much already. The numbers don’t add up for the advocates of more tort reform so let’s make sure our legislators are hearing us and not just the loud, shrill and well-funded voices of those in the minority.

I have blogged earlier about the type of problems this defective drywall causes and the uncertainty of recovery from the Chinese manufacturers.

Now that the insurance companies have become aware of the existence of the Chinese drywall in their insureds’ homes, they are delivering the second whammy to the beleaguered homeowners with notices of cancellation or non-renewal.

Innocent consumers are now facing the situation of owning and living in homes with corroding pipes and electrical wiring, noxious odors, damaged appliances, no realistic hopes for damage recovery and now, no insurance coverage… a requirement for most mortgages. Without insurance coverage, the banks will begin foreclosing on the homes putting more innocent victims in debt and out of their homes.

It’s past time for our legislators to start looking out for ordinary citizens. For too long foreign companies have had unfettered access to American markets, but hide behind their own governments’ refusal to make them answer to victims in our court system. Restricting victim’s rights in the name of international commerce and corporate profits have brought about terrible consequences for many Americans. It’s also past time for the bloated insurance industry to continue to enjoy anti-trust exemption status as they readily give their policyholders the shaft.

Actually, it’s the health insurers we need to be reforming. As we learn how the insurance industry works, doctors have begun to share with us some of what insurance companies do to make it difficult for doctors to provide proper care.

1. Insurance companies change what they will pay for.

Insurance companies routinely change what services they will reimburse. This list can change yearly. It is driven by insurance company costs and not by medical necessity as determined by the doctor and the patient.

2. Insurance companies specifically look for reasons to deny recommended services.

Insurance companies have physicians and nurses on staff that can deny services. The person reviewing the procedure may not even be familiar with the medical procedure (for example, a psychiatrist reviewing the records of a surgeon).

3. Insurance employees get bonus compensation when they save the company money.

Since it pays to deny care, the insurers can pay bonuses as incentives to deny coverage.

4. Insurance companies discount payments for surgery and other procedures.

This is a process called bundling which pays surgeons steeply discounted rates for multiple procedures.

5. Insurance companies make a bigger profit by delaying payment to doctors

A study showed that an insurance company can make as much as $84,000 in bank interest rates each day they pay a claim late. An average clean claim (with no errors) should be paid from 14-30 days after it is submitted by a doctor’s office. The average claim is paid anywhere from 30-45 days. Some claims, after multiple appeals, can take up to a year to be paid after the service was given.

6. Insurance companies can ask the doctor for reimbursement of paid claims indefinitely.

A doctor has 120 days to submit a claim, after that time he/she may not submit a charge or charge the patient. However, an insurance company can ask for reimbursement with no time limit.

Doesn’t it make you wonder how so many people are duped into opposing health care reform? It’s time patients and their doctors’ decisions come first instead of being dictated to by the insurance industry.

The girl’s parents filed a wrongful death lawsuit against Cigna for their arbitrary refusal to pay for the needed transplant. The suit was summarily thrown out by a federal judge who cited the 1987 U.S. Supreme Court decision interpreting ERISA shielding employer-paid health care plans from damages based on their coverage decisions. The 1974 Employee Retirement Income Savings Act (ERISA) governs employee retirement funds and benefit plans. Since ERISA plans cover over 132 million workers and their dependants, these rulings have in effect slammed the courthouse door on coverage decisions to a huge group of citizens.

As part of the national health care reform debate, overhaul of ERISA should be included. Insurers should no longer be able to hide behind ERISA’s immunity protection for their life and death coverage decisions. The late senator Ted Kennedy unsuccessfully tried to do just that in 2001. Despite his pleas to overturn the total immunity given to health insurers, a shield enjoyed by no other industry, the Republican majority and a well-funded lobbying effort paid for by the insurance industry defeated his reform efforts. It’s high time this protection of the wealthy insurance industry ends.

Although the California parents’ wrongful death claim was dismissed, they may have one last chance at making Cigna accountable in some part for their daughter’s premature death. A few months after her daughter’s death, the grieving mother travelled to Cigna’s corporate headquarters in Philadelphia to ask for an apology from company executives for what they did to her daughter. Employees of Cigna literally jeered and made obscene gestures to the woman as she was escorted from the building by security. She filed suit for her emotional distress and a federal judge recently ruled that ERISA immunities did not apply to her lawsuit. Cigna may soon have to answer for at least part of their callous behavior to this agrieved family.