BREAKING NEWS UPDATE 11/04/05

The areas that will be covered in this newest update are as follows:

(a)   Attorney Referrals
 
(b)   Problems with the SFDCT reviews of “Rupture Claims
 
(c)   Dow Corning change of position on post 1971 Cronin     implants
 
(d)   Problems with the Explant Assistance Program
 
(e)   Extension of Deficiency Deadlines
 
(f)   Estimated waiting time of the SFDCT for reviewing claims

(A)     ATTORNEY REFERRALS

For the last several years, we have been receiving referrals from fellow attorneys who no longer wish to continue representing breast implant claimants for different reasons. The most dominant reason is these attorney have been representing Dow Corning breast implant claimants since 1994, and have not been paid any money to date. It is difficult enough for an attorney to handle a claim on a “contingency fee” basis where they do not get paid if there is no settlement, but to work on a file for 11 years without receiving any money, is really burdensome and unreasonable for most attorneys.

The other primary reason for referring cases to this office are attorneys are concerned about their “personal liability” in meeting all the upcoming “deadlines”, when they do not have the requisite office staff who are able to work on breast implant claims as they did in the past.

While I understand that the majority of people do not have “sympathy” for attorneys in general, you can imagine how difficult it would be for you to perform work at your job and not get paid. Try doing it for 11 years!  While I am trying to help as many claimants as I can, I will not be able to continue accepting referrals from attorneys when the deadlines on the cases they are referring are only several months away.

For attorneys who wish to continue referring breast implant claimants to our office, please be aware that we can not guarantee we will accept the referral if there is a deadline that is coming up within 90 days. If we do accept a referral, we can only honor a referral fee if the referral is from a duly licensed attorney or law firm.

(B) PROBLEMS WITH THE SFDCT REVIEW OF RUPTURE CLAIMS

There is a “BIG” problem going on with the way the SFDCT is reviewing rupture claims. I have seen rupture claims being denied, when the Explant and/or Pathology report clearly states the implants were ruptured. The SFDCT reviewer in these cases will deny the claim for one of three reasons. Reason Number One: They will focus on one word in the reports which they feel will show the implant was not ruptured, while completely ignoring the findings of what the surgeon reported in his report, or what the pathologist stated in the pathology report, which stated the implants were ruptured.

Reason Number Two: They will deny the claim saying there was only “gel bleed”, when common sense (and most surgeon’s opinions) would dictate that gel bleed could not account for large amounts of silicone accumulating outside the implant, or accumulating in masses away from the implant. There has been Pathology reports showing that over 25% of the silicone was missing from the implant, and the SFDCT still had denied the rupture claim saying it is “gel bleed.” Gel bleed is microscopic beads of silicone which come through the porous implant. It does not and cannot account for the volume of silicone that is being discovered during the explantation surgery.

Reason Number Three: The SFDCT is treating the Pathology Report as an “automatic trump card” over the Explanation Report. Although the new Claims Administrator has stated that this will no longer be the policy of the SFDCT, we have seen no changes in this policy. We have seen the SFDCT deny the rupture claim, when the surgeon clearly states in his or her Explantion report that the implant was ruptured and silicone was oozing out of the implant. In such as a case, if the Pathology report did not state that they observed a rupture, the SFDCT reviewe would completely discount what was contained in the surgeon’s report.

I have personally spoken to David Austern, the new Claims Administrator, and he is aware of this problem. I have found Mr. Austern to be a man of incredible integrity who is trying to do the right thing. Mr. Austern has been a trial attorney for over 40 years, and while I may not agree with Mr. Austern on many issues, I respect his honesty and credibility, and note that he is trying to be neutral and unbiased in his decisions. He is in a difficult position in having to follow the exact protocols of the Dow Plan, and does not have the leeway in bending the rules, no matter how much he would like to. He has to wait for the Court to make a ruling that will change the rules, before he can implement such changes.

With that being said, what is happening with the SFDCT review of certain rupture claims is simply unfair and unjust. Rupture claims are being denied when the implants are clearly ruptured, regardless of what rational the SFDCT reviewer is utilizing. The ultimate goal of fairness is not being obtained in these cases. I have suggested to Mr. Austern that he should hire neutral and unbiased plastic surgeons and pathologists to meet with his rupture reviewers, so they can be educated as to the difference between gel bleed and true ruptures, so they can make the “right” decision in determining whether an implant is ruptured or not.

I have also spoken to members of the Claimant Advisory Committee on this issue, and they are very much aware of this problem and are trying to work with Mr. Austern as to achieve an acceptable resolution of this problem. I would like to see if this problem could be put before Judge Hood for a future ruling. I will keep you informed as to any updates on this particular problem.

(C) DOW CORNING CHANGE OF POSITION ON POST 1971 CRONIN   IMPLANTS

As reported in my earlier updates, I had stated that my office has had tremendous success in having Dow Corning accept claims where claimants received Cronin implants after 1971. The rule is Cronin implants after 1971 are not accepted in the Dow Plan. I have also stated before this rule simply makes no sense and is patently unfair, especially taking into consideration that there was never any manufacturer, other than DOW CORNING, who manufactured the Cronin implant.

I have been able to have claims approved where the claimant received Cronin implants as late as 1979. Recently, I received my first rejection from Dow Corning, where the claimant had received a Cronin implant in 1973. Previously, Dow Corning has approved three other claims where the claimant received Cronin implants in 1973. I have now received several more rejections from Dow Corning on the claims of claimants who received Cronin implants after 1971.

I have finally received reliable information from the SFDCT as to why Dow Corning is now rejecting post 1971 Cronin claims. It was explained to me “before” the Effective Date of the Dow Plan (June 1, 2004), the SFDCT would refer directly to Dow Corning, any Proof of Manufacturer claims of claimants who received Cronin implants after 1971. It was Dow Corning, and not the SFDCT that was allowing certain claims of claimants who received Cronin implants after 1971, even though the Notification of Status letter was sent by the SFDCT.

After the Effective Date of the Dow Plan, Dow Corning has informed the SFDCT that they will no longer have an “individual review process” for claimants who received Cronin implants after 1971. Dow Corning has also instructed the SFDCT Claims Administrator, that he has no discretion or authority to accept any claims for claimants who received Cronin implants after 1971, and he must follow the exact protocols of the Dow Plan, which excludes Cronin implants after 1971.

I have spoken to the Claimant Advisory Committee on this matter, and they were not officially aware that Dow Corning had changed their position without informing anyone else. The CAC is going to discuss this matter with the attorneys for Dow Corning, to see if something can be done to “revive” the individual review process for post 1971 Cronin implants. I will keep you informed as to any progress that is made in this matter.

(D) PROBLEMS WITH THE EXPLANT ASSISTANCE PROGRAM

The Dow Plan has a program called the Explant Assistance Program, otherwise known as the “EAP.” This program is suppose to assist Category 5 claimants who want to have their Dow Corning implants removed, but do not have the necessary funds to pay for the surgery. The way this program is structured, the claimant has to fill out forms providing the name and address of the surgeon who is willing to perform the surgery. The surgeon has to agree that he will not provide the claimant with “silicone” replacement implants, as this will disqualify the doctor from receiving the $5,000 Explantation Benefit (saline implants are OK).

There are two big problems with the EAP program. Problem Number One is that the vast majority of women who want to have their implants removed, also want to have replacement implants. The cost for explantation surgery with reimplantation of saline implants runs from $7,500 to $8,500, depending on where you live. The $5,000 Explant Benefit from the Dow Plan will not cover the cost of this surgery, and the claimant in most instances does not have the additional $2,500 to $3,500 to cover this additional cost. The vast majority of insurance companies will also not cover this surgery.

Problem number two is under the EAP, the doctor will only be paid “after” the surgery. There are not too many plastic surgeons that are willing to perform surgery when the patient does not have insurance, and then wait to be paid “after the surgery is completed.” This is why the number of EAP claims that have been paid out is incredibly small. The EAP problem, although it was intended to assist the claimant who did not have finances to have surgery to have their implants removed, has been a complete failure.

To date, the SFDCT has paid out on 41,575 claims. 15,085 were for Explant claims, 10,398 were for Rupture claims, 9,456 were for Expedited claims, 6,561 were for Disease claims and 75 were for Explant Assistance Claims. Of several hundred thousand claimants, only 75 explant assistance claims have been paid? This part of the Dow Plan is not working and needs to be fixed ASAP.

The SFDCT is trying to come up with some sort of plan where they can “guarantee” the surgeon his money, without actually providing a “legal guarantee”, which could cause the SFDCT to incur legal liability. I have been lucky to find a few plastic surgeons that are willing to perform the surgeon and wait for their payment and even “front” the cost for reimplantation of saline implants, until the claimant’s claim is settled.

A bigger problem is that the deadline for submitting rupture proof is June 1, 2006. If a claimant cannot find a surgeon who is willing to accept the $5,000 EAP payment, and her rupture proof is not submitted to the SFDCT by the deadline date, they will not qualify for the $25,000 rupture benefit, even if their implants are removed after June 1, 2006 and found to be ruptured.

As soon as I hear any changes in the EAP, I will let you know.

(E)  EXTENSION OF DEFICIENCY DEADLINE

As reported in my last update, I was informed that the deadline to cure deficiencies may be extended once again. The Court has now extended the deadline to cure deficiencies to January 17, 2006. This applies to all deficiencies, not just deficiencies related to medical claims. 

(F)  ESTIMATED WAITING TIME FOR THE SFDCT IN REVIEWING CLAIMS

The following is an estimate from the SFDCT in reviewing claims. If you have claims that have not been reviewed within these guidelines, you should contact the SFDCT.

Estimated wait time for Rupture Review

If benefit form was submitted by:

0-2 months

2-4 months

4-6 months

Prior to January 2005

X

 

 

01/05 – 09/05

 

X

 

 

 

Estimated wait time for Explant Review

If benefit form was submitted by:

0-2 months

2-4 months

4-6 months

6-8 months

Prior to October 2004

X

 

 

 

10/04 – 04/05

 

X

 

 

05/05 – 09/05

 

 

X

 

 

 

Estimated wait time for Disease Option 1 Review

If benefit form was submitted by:

0-2 months

2-4 months

4-6 months

6-8 months

8-10 months

Prior to August 2004

X

 

 

 

 

08/04 – 09/04

 

X

 

 

 

10/04 – 12/04

 

 

X

 

 

01/05 – 06/05

 

 

 

X

 

07/05 – 09/05

 

 

 

 

X

 

 

Estimated wait time for Disease Option 2 Review

If benefit form was submitted by:

0-2 months

2-4 months

4-6 months

6-8 months

8-10 months

Prior to September 2004

X

 

 

 

 

09/04 – 11/04

 

X

 

 

 

12/04 – 06/05

 

 

X

 

 

07/05 – 09/05

 

 

 

X

 

FACT

In 1997, The Mayo Clinic found one in four women with implants will need surgery within five years for ruptures or other disfiguring complications. 

FACT

What effect does silicone have on the enzyme system, cell membranes, DNA damage, interference with repair mechanisms and the effect on energy production?

CONTACT INFO

Law Offices of 
Stephen M. Frailich

22287 Mulholland Highway, PMB No. 409
Calabasas, Ca. 91302
(818) 223-9064
(818) 223-9062 (Fax) 
Visit breast implant law ; breast implant blog &
www.frailichlaw.com

Call Toll-Free
1-800-573-3236 (24 Hour Voice Mail)
E-MAIL: smflawcorp@aol.com

 

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