|(a)||Options for claimants who received $5,000 in the MDL-926 Class Action, and their claim is still not settled:
|(b)||Options for registered claimants of the Dow Class Action, who still do not have proof of their implant brand;
|(c)|| SFDCT denials of Disease Option One Level A claims;
|(d)|| SFDCT revised reviews of denied Rupture Claims;
|(e)|| SFDCT Claims Administrator, David Austern;
|(A)||OPTIONS FOR CLAIMANTS WHO RECEIVED $5,000 IN THE MDL926 CLASS ACTION, AND THEIR CLAIM IS STILL NOT SETTLED|
If you received an implant manufactured by Bristol, Baxter or 3M, and you have registered in the MDL-926 Class Action and previously received a $5,000 Advance Payment (some time in 1996), your status is that of a “Current Claimant.”
Current Claimants are afforded the most rights of all claimants in the MDL-926 Class Action. Current Claimants are entitled to a $5,000 Advance Payment and a $3,000 Explantation Benefit if their implants were removed after April 1, 1994 and not replaced with silicone implants (saline implants are OK). Current Claimants are entitled to Rupture Benefits (which would double their medical claim settlement) if their implants were removed and documented as being ruptured, and the reports were filed with the MDL Claims Board on or before December 16, 1996.
Current Claimants are entitled to make a medical claim under the easier to qualify for, lower paying, Fixed Amount Benefit Schedule, which has a settlement range from $10,000 to $50,000. However, Current Claimants are also entitled to make a claim under the harder to qualify for, higher paying, Long Term Benefit Schedule, which has a settlement range from $75,000 to $250,000. If you have only received a $5,000 Advance Payment and you do not have implants manufactured by Dow Corning, then your “claim is still open until the year 2010.” The same is true even if you received the $3,000 Explantation Benefit. There are really only four (4) reasons why your claim is still open:
Your medical claim was approved under the Fixed Amount Benefit Schedule, but you did not file a Benefit Schedule Option form, choosing the Fixed Amount Benefit Schedule and asking the Claims Board to send you the “Release” form;
|(2)||Your medical claim was not approved because either the Claims Board did not have enough information to make a decision, or they found “deficiencies” in your medical records, and you have not filed a Benefit Schedule Option Form and/or attempted to cure the deficiencies;|
|(3)||Your medical claim was not approved, and you have filed a Benefit Schedule Option Form, and tried to cure the “deficiencies”, and they were still rejected by the MDL-926 Claims Board;|
|(4)||You filed a Benefit Schedule Option Form, and made a claim under the Long Term Benefit Schedule and your claim has been denied by the Claims Board.|
If you fit into the above criteria, our office can help you to get your claim settled in the MDL-926 Class Action. Please call or write our office and explain the particular details of your claim, and we will be able to come up with a solution on how to settle your claim, so you can finally receive your money.
|(B)||OPTIONS FOR CLAIMANTS WHO RECEIVED $5,000 IN THE MDL926 CLASS ACTION, AND THEIR CLAIM IS STILL NOT SETTLED|
If the medical records of your surgery are no longer available, then your only options are as follows:
Option One: If your original surgeon is still around, attempt to obtain an Affidavit from the surgeon. The affidavit will have to state the records have been destroyed and he or she will have to state what brand of implant you received during your surgery. The Affidavit also has to state that the reason why the doctor knows you received this particular brand of implants during the year of your surgery, especially when the medical records are no longer available. The surgeon will need to state that he "Exclusively" used this particular brand of implant during the year of your surgery, or the Affidavit will not be accepted. If the Affidavit states that he or she used more than one brand of implant during this particular year, the Affidavit will also not be accepted. To obtain a sample Affidavit, please go to the web site of the CAC: http://www.tortcomm.org/prod_ident.shtml
Option Two: Have the implants removed, and hope that the Explantation Report lists the brand of implant that is removed (by being able to read the inscription directly from the implant), or uses an identifying characteristic of the implant (such as the Dacron patches for the Dow Corning implant). In such an event, the Explantation report can be used as proof of your implant brand. The chances of the Explantation report identifying the removed implants is very slim.
Option Three: Have the implants removed, or if they have already been removed and preserved, and if they are not identified in the Explantation report, have the implants sent to either DR. PIERRE BLAIS at INNOVAL FAILURE ANALYSIS or DR. SAUL PUSZKIN at HEALTH SCIENCES CONSULTANT GROUP, INC. to be tested. If Dr. Blais or Dr. Puszkin are able to confirm the implants as Dow Corning, the report (Affirmation Statement) can be used as proof. Dr. Blais is located in Canada and his phone number is (613)728-8688. Dr. Puszkin is located in Houston, Texas and his phone number is (713)790-1840.
|(C)||SFDCT DENIALS OF DISEASE OPTION ONE LEVEL A CLAIMS|
As many of you already know, the vast majority of Disease Option One Level A claims have been denied by the SFDCT. The reason for this is the SFDCT is interpreting the disability standard for Level A claims to require “total disability” in both vocation AND self care. The Claimant Advisory Committee (CAC) has taken the position that the standard of disability as written is total disability in either vocation OR self care.
This issue has been brought before the Court. The Court has set oral arguments on this issue for April 6, 2006. Realistically speaking, the Court will probably not make a decision until the end of this year.
It should be noted that in many cases where the SFDCT has denied a claimants Level A claim, they have accepted the claim at Level B. It is my understanding that if such a claimant accepts the Level B award after it was denied at Level A and the Court later determines that the SFDCT was utilizing the incorrect standard of Level A disability, the SFDCT will honor the claim at Level A and pay the difference between a Level A and Level B settlement. This will apply only to those claims that were denied at Level A due to the limitation of activities issues noted above.
As it stands now, it is extremely difficult to prevail on a Disease Option One Level A claim. However, in the event that the Court decision sides with the CAC’s interpretation of the rules, then there really is no risk in accepting the Level B award, if you feel you cannot fulfill the Level A criteria under the SFDCT’s present interpretation. In my opinion, the SFDCT’s intentions of honoring Level A claims that were denied, if the Court’s ruling sides with the CAC on the limitation of activities issue, is fair.
|(D)||SFDCT REVISED REVIEWS OF DENIED RUPTURE CLAIMS|
As reported in my earlier updates, many of our clients’ rupture claims were being denied, because the SFDCT position was the implants were not considered “ruptured” as per their definition of rupture, but instead had gel bleed. This was very upsetting to our clients who were told by their surgeons after the surgery that their implants were ruptured, and the surgery report documented free silicone outside of the implant. The SFDCT would also take the position that “leakage” was not considered a rupture, and if there was any inconsistency between the surgery report and pathology report, the rupture claim would be denied.
The CAC and Claims Administrator were very much aware of this problem, and has been actively working together to resolve this issue. The CAC has brought to the SFDCT attention, that per the definition of “leakage”, there must be a hole or other opening from which the fluid leaks out. There are many other dictionary sources that all describe "leak" or "leakage" the same way, that is, as the escape of fluid through a hole, crack or other opening. The Dow Plan's definition of the word rupture is similar: a hole or other opening in the elastomer envelope
The CAC has recently announced in their latest Newsletter, that the problem with the issue of “leakage” has been addressed and resolved with the Claims Administrator, and that the SFDCT should now accept the term “leakage” in the surgery or pathology report, as proof of a rupture. If your rupture claim had been previously denied based on wording of “leakage” in the surgery and/or pathology report, you should file a Request for Re-Review of your rupture claim. As noted above, the word leakage should now be considered acceptable.
The CAC is still working to get the “Gel Bleed” issue resolved. They have provided documents to the Claims Administrator that defines “gel bleed”. These documents consistently describe gel bleed as microscopic droplets of silicone oil that leach through the silicone elastomer shell creating an oily feeling to the implant. Gel bleed is not actually silicone gel, which is described in Operative Reports as sticky or tacky. It is silicone oil.
If silicone gel is found outside the envelope, this should be proof that the implant has ruptured even though the doctor and/or pathologist may not be able to visually see the opening in the elastomer envelope that caused the gel to escape. Many internal manufacturer documents discuss how implant shells have numerous pinhole defects, crease folds that create a "wear spot" or opening on the envelope, and other ways that implant shells fail which are not always able to be seen on gross inspection. We have been informed of this fact many times by Dr. Blair and Dr. Puszkin.
Unfortunately, this issue is not yet resolved. I feel comfortable and confident that Ernest Hornsby and Dianna Pendelton Dominguez of the CAC will be working hard on behalf of all the claimants, to get this issue resolved favorably.
|(E)||SFDCT CLAIMS ADMINISTRATOR, DAVID AUSTERN|
When Mr. Austern took over as Claims Administrator, most people were not aware of all the internal problems that were going on within the SFDCT. The only thing that claimants were aware of was they were not getting paid and the delays and explanations as to why they were not getting paid were getting longer. Most people were not aware of the high turnover of employees within the SFDCT and their computer system that was installed was not efficient to handle several hundred thousand claims.
When I first met Mr. Austern at a meeting in Dallas, I was surprised my his admission of the internal problems within the SFDCT, and his desire to fix these problems so there would not be any further unnecessary delays in the processing of claims and payments. There were several issues that were filed by the CAC and pending before the Court, as it pertained to how the SFDCT was interpreting the claims criteria (especially for Option One Level A claims and Rupture claims). He stated that he did not have a personal stake in the Court’s decision, and would abide by whatever decision the Court makes. He also stated that if any attorney had any problems with the SFDCT’s decision on their clients claim, and they felt this case was an “anomaly”, that they should contact him personally to inform him of the problem.
I took Mr. Austern up on his offer on many of my clients’ files and on many, many occasions. On each file I felt there was problem in how the SFDCT arrived at their decision, he checked into each problem and always got back to me with an answer. To my surprise, on many occasions he would overrule the SFDCT’s decision, and ruled in favor of my client. Although there have been several instances that he has not ruled in my client’s favor, I know that he will check into the problem and actually get back to me with an answer. I have never had that type of experience with a Claims Administrator before.
At the present time, he is actively working with the CAC in trying to resolve many issues which are causing concerns to the CAC and Dow claimants. He has inherited a position with the SFDCT that was already plagued with problems. It is obvious in my opinion, that he is walking a fine line in trying to enforce the provisions of the Dow Plan as it was written, with Dow Corning looking over his back. While at the same time, he is trying to make changes and modifications that are within his authority, to ensure the fairness of the implantation of the Plan.
I feel that my clients, and the hundred of thousands of other claimants, may not always agree with the decisions of the SFDCT, but they will get a fair shake with David Austern as SFDCT Claims Administrator.