By Timothy Tomasik & Patrick Grim

Justice Ruth Bader Ginsburg delivered the opinion in Coventry Health Care of Missouri, Inc. v. Nevils, one of the last Neil Gorsuch-less cases before the nation’s highest court. Writing for the majority, the Notorious RBG made it clear that when it comes to states prohibiting insurance companies from claiming the proceeds of personal injury settlements – federal law reigns supreme.

The Nevils case stemmed from a 2006 car accident, in which Jodie Nevils, a former federal employee, was injured. Per Nevil’s employment with the federal government, Nevils was enrolled in and insured under a Federal Employees Health Benefits Act (FEHBA) plan offered by Coventry Health Care of Missouri. Soon after filing suit, Nevils recovered a settlement award against the defendant driver. Nevils v. Group Health Plan, Inc., 418 S. W. 3d 451, 453 (Mo. 2014).

After the settlement, Coventry asserted a lien for $6,592.24 against part of the settlement proceeds to cover the medical bills it had paid. After initially repaying the lien, Nevils discovered that Missouri law did not permit subrogation or reimbursement in this context. Accordingly, Nevils filed a class action against Coventry in Missouri state court, alleging that Coventry had unlawfully obtained reimbursement.

At issue in the class action was whether FEHBA preempted Missouri’s anti-subrogation and anti-reimbursement laws. On one side you had Nevils, whose arguments were premised on Missouri law. On the other you had Coventry, (now part of the Connecticut based healthcare group Aetna), who asserted that FEHBA provisions overruled state law and made subrogation/reimbursement clauses in government employee benefit contracts enforceable. In relevant part, the provision at issue stated that “the terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” 5 U.S.C. § 8902(m) (11)

In the end, SCOTUS agreed with Coventry, holding that Missouri had no authority to regulate the subrogation and reimbursement provisions in the contracts. Because the contractual provisions at issue granted the insurance carriers rights to payments in exchange for the benefits they provided, SCOTUS stated that providers clearly fell within the language of the Federal statute preempting State Law.

As an alternative in his brief, Nevils had also argued that any finding by the Supreme Court that §8902(m)(1) covers subrogation and reimbursement clauses would violate the Supremacy Clause by assigning preemptive effect to the terms of a contract. Ginsburg disagreed, stating that “the statute, not a contract, strips state law of its force.” The judgment of the Supreme Court of Missouri was reversed and remanded for further proceedings. With the newly confirmed Supreme Court Justice Gorsuch still waiting to weigh in on his first case, Justice Thomas issued a concurring opinion.

The laws governing insurance subrogation and reimbursement can be complicated. At Tomasik Kotin Kasserman, we have decades of experience dealing with insurance companies, hospital bills, and healthcare plans. In order to ensure our clients receive full compensation, we strive to fully appreciate and understand the ever-changing laws governing our Nation’s insurance providers.

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By Timothy Tomasik

If you or a loved one have been recently diagnosed with cancer, there is no doubt that you have a multitude of questions racing through your mind. What sort of treatment options are available? What are side effects of chemotherapy? How will my, or my family member’s body handle the drugs that they are prescribed after treatment? And of course, ultimately will the treatment be successful?

It is no secret that a cancer diagnosis can be one the most frightening and uncertain times for a family. Once diagnosed, patients typically consult with their doctor to determine what chemotherapy options are available to target and destroy cancer cells. Unfortunately, chemotherapy cannot tell the difference between a cancer cell and a healthy cell making temporary hair loss from a common side effect of treatment. While most patients grow their hair back after treatment ends, some chemotherapy drugs are making this loss permanent. Sadly, patients, (especially female breast cancer survivors), are beginning to experience permanent hair loss after using the chemotherapy drug Taxotere ®.

Tomasik Kotin Kasserman Trial Lawyers are investigating cases involving patients who took Taxotere ® as part of their chemotherapy regiment and who have suffered from permanent hair loss, including permanent significant alopecia.  There has been a connection between the use of this drug and a significant lack of hair regrowth after six months.

Taxotere ® is administered through injection and has several known side effects including nausea, fatigue, mouth sores, bone and muscle pain.  Also, laboratory testing has demonstrated that patients taking Taxotere® have a low platelet count making it extraordinarily difficult for patients to form clots to stop bleeding.

As result of these side effects, the FDA has received numerous reports from women who have suffered permanent hair loss after treating with Taxotere ®.  Like many defective drug products, patients were not adequately warned of the potential side effect of permanent hair loss. The drug’s manufacturer Sanofi-Aventis removed language from its label, including “hair generally grows back” in 2010. It was not until five years later, in December 2015, that the side effect of permanent hair loss was added to the Taxotere ® label. Sanofi-Aventis waited until this time to also warn patients that that permanent hair loss has been reported with use of the drug.

Many patients know this drug by its generic name Docetaxel.  This drug is classified as a “plant alkaloid” and in 2006 was approved by the FDA for the treatment of breast cancer, lung cancer, stomach cancer and other metastatic cancers, including prostate cancer.

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By Timothy Tomasik

“Can I borrow your car?” is a phrase nearly every car owner has been asked at one time or another. While handing over the keys to a friend in need may seem like the courteous thing to do, it is important to remember that you are trusting the other driver to operate your car safely.  Tragically, this all-too-common courtesy can have drastic and life altering consequences for the owner when the driver borrowing the car is not properly qualified to operate it.

In the automobile context, the law governing owner liability in this scenario is called “negligent entrustment.” Negligent entrustment involves the lending of one person’s car to another when the lender knew or should have known that the borrowing driver was not qualified to use the vehicle.  Under these circumstances, the law imposes a duty not just on the driver borrowing the keys, but also on the owner.  Essentially, when the owner knew or should have known that the driver was not qualified to operate the car, the owner will be liable for the negligent acts of the trustee (driver) resulting in harm to others. Typically, whether the owner “knew” the driver was unqualified hinges on whether the owner was aware of multiple prior traffic offenses or vehicular crashes.

Negligent entrustment law in Illinois is premised upon the general liability for Negligent Entrustment as defined in the Restatement (Second) of Torts:

It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends to use the thing or to conduct himself in the activity in such a manner to create an unreasonable risk or harm to others.  (citing [RESTATEMENT (SECOND) OF TORTS § 308 (1965)].

Illinois law requires that a victim injured as result of someone negligently entrusting their vehicle to another to demonstrate that: (1) the owner entrusted a dangerous instrumentality (car), (2) that the entrustment was to a driver who was reckless or inexperienced, and (3) that entrustment caused injury to the victim. To hold the trustor (owner) liable for the actions of the driver (trustee), the injured victim must also demonstrate that the trustor had a superior right of control over the car and that the owner knew or should have known that the individual that borrowed the car was incompetent, unsafe and/or unfit to operate and drive the car.

Demonstrating a superior right to control the car is easily established by proving that the owner purchased the vehicle, paid for its insurance and was titled in the owner’s name.  Of course, the victim must demonstrate that the driver was given permission to operate the vehicle.

There are a variety of scenarios through which a victim can demonstrate during the trial that the driver was not competent or was inexperienced. Some examples include evidence that the driver did not have a valid driver’s license, had received multiple traffic violations in the past, and of course, that the driver was involved in prior car crashes.  Ultimately, borrowing a car to someone with a suspended or revoked license is a very strong basis to bring a claim against the owner of a car.

At Tomasik Kotin Kasserman we have successfully represented victims who have been catastrophically injured or killed as a result of a vehicle owner’s failure to recognize that the person borrowing the car is unfit to drive.  When tragedy strikes and innocent passengers and drivers are injured, it is necessary to fully investigate the circumstances surrounding the crash to determine if the driver may have been negligently entrusted with the vehicle.

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