There was a time when Americans could feel protected by the Federal Drug Administration (FDA). It was a time when only 3-4% of all new drugs were first released in the United States. Eighteen-years later an estimated two-thirds of all new drugs are first being approved in the U.S. What is important to understand is that the FDA and pharmaceutical companies are aware that adverse reactions to a new drug will not become fully evident until after the drug is approved for sale by the FDA.

What makes a bad situation worse is the way the FDA now fast-tracks drugs. They would like the public to think that the reason for fast-tracking is because of public demand to make ‘cures’ available quickly. One has to question this rationalization with the revolving door between the FDA and pharmaceutical companies. It is not unusual for someone working for the FDA to approve drug XYZ and once approved this person soon goes to work for the same pharmaceutical company that manufactures the same XYZ drug. Even those physicians who sit on panels to approve new drugs often receive benefits, in one form or another, from the pharmaceutical company they are suppose to be overseeing.

Dr. Strand, takes us along a journey that explains how drugs are approved today and contrasts today’s policy with procedures before the radical FDA policy changes of 1990. Some questions you might want answered the next time your physician prescribes a medication is if they accept any gifts or money as a speaker from the pharmaceutical company that manufactures the drug. Sure, he or she may appear offended, but in all fairness you are entitled to know if there is a possibility the decision to prescribe that drug is being influenced in any way.

Another question to ask the physician, and one you can follow-up on your own, is how long the drug has been on the market. If it is only a few years, you might want to read Dr. Strand’s, Death by Prescription, before accepting a new drug as the best course of treatment. Otherwise, you may be a Guinea pig instead of just a patient.

She was brought up with a strong work ethic, this, coupled with the fact that she immensely enjoyed her job, only increased the emotional pain of not working. Regardless of how much she wanted to return to work, the physical pain was too great to overcome. Eventually her injury required surgery which, unfortunately, only made matters worse.

For the first 3 months of her disability, she had short term disability insurance through her employer’s insurance. For the balance of the first year, CNA’s LTD policy co-paid with the State of California’s Disability Insurance (SDI) benefits. At the end of the year, when California’s State Disability Insurance was about to run out, she received a letter from CNA saying that they were denying her any future payments because they felt she should be better. It was odd that they said that because all 6 of her medical doctors said she was 100% disabled. Even odder still is that she was never examined by any represenative of CNA insurance.

She was not getting any better and, if anything, her situation was deteriorating under the stress of not knowing how she was going to be able to pay the rent and day-to-day bills. Fortunately, her car was paid for. Unfortunately, like so many others faced with medical expenses she was using credit cards to live and eventually was forced into bankruptcy.

Like so many disabled individuals who find it difficult to muster the energy to fight a deep pocket insurance company, she needed help in working through the insurance company’s labyrinth of mythical proportions.

I tried to find an attorney who would be able to help her. Phone call after phone call to attorneys who handle insurance claims were met with the same response after telling them of my friend’s denial by the LTD insurance company—laughter. After a half-dozen phone calls, I found an attorney who didn’t laugh after explaining to him about her situation. I asked him why no one seemed interested in a case that was obviously a miscarriage of her legal rights.

He explained that chances are her LTD policy fell under the Employee Retirement Income Security Act (ERISA) and there wasn’t much that could be done. The only chance she would ever have of collecting any money was if the claim did not fall under ERISA guidelines and could be heard in California State Court. Even then, he was not in the position of mounting that kind of lawsuit against a deep pocket insurance company.

That happened several years ago. I was finally able to locate a law firm familiar with ERISA and after reviewing her case was willing to take on CNA. At first, after wading through the contracts, it seemed clear that her claim against CNA insurance actually did not fall under ERISA guidelines and that the case could and should be heard in a California state court. Unfortunately, the plaintiff’s lawyer’s were out maneuvered by CNA’s attorneys. Apparently, somewhere along the line, CNA provided new material that made references to ERISA. Though not the orignial contract which she possessed (which indicated that she, not the company, had purchased the LTD insurance from CNA) , the new material made references to ERISA.

This new material, and a case elevated to the 9th Circuit Court that was ‘similar’ to my friend’s and which had just been denied the right to litigate in State Court, meant to her attornies, that the chances of recovery were slim to none. The law firm had forewarned her that they would not be able to handle the case if it was deemed to fall within ERISA’s guidelines because it would then fall under Federal Court which made no provisions for attorney’s fees.

Fortunately, after being turned down the first time (common practice) and obtaining a social security attorney, SSDI approved her claim for 100% disability. After filing for bankruptcy, and moving to a lower income area she was then able to keep from having to live in her car.

As Ray Bourhis says in his book, Insult to Injury, the last thing you want to think about is your long-term disability insurance. That is until you are permanently disabled, then it is the only thing you can think about.

The book tells the story of Dr. Joan Hangarter’s legal nightmare dealing with UnumProvident. Unlike my friend’s LTD, her policy was not subject to ERISA guidelines.

UnumProvident initially paid on Dr. Hangarter’s LTD claim, but after 2 years sent her a denial letter informing her that in the insurance company’s eyes she was better and was able to return to work. It didn’t matter that Dr. Hangarter was forced to sell her chiropractic office, that she would have to lose her car and be forced into bankruptcy. It didn’t matter that she no longer could perform the one thing that she loved 2nd only to her children–that is ability to help people heal as a chiropractor.

Penniless, on welfare, and with little hope, Dr. Hangarter sought out legal help. She was fortunate to find Ray Bourhis and partners. Through Bourhis’ often sardonic wit he provides a real life example of how a non-ERISA LTD insurance claim is denied and why the insurance company is seldom forced to pay. Those who have policies that fall under ERISA have little hope of ever seeing a dime of benefits from their policy once it has been denied. It will not matter if they are parapalegic, suffering from Parkinson’s disease, even unable to walk across the room without assistance.

The reason you do not often hear about the problems with LTD claims being denied is that the insurance companies know that someone disabled, penniless and on welfare, is rarely going to pose a problem either legally or through bad press. Those that do make noise are sometimes offered a settlement. The policy might be worth over $500,000 over time, but the claimant is offered $50,000 and told to sign the agreement and not to discuss their settlement with anyone. They are told if they do not accept the $50,000 they risk getting nothing because, even if they do prevail in court, it will be appealed and they promise it will be a long time before they will see any money.

For those few lucky souls who do take their LTD insurance company to court on a bad-faith claim and prevail, they are often told to sign a non-disclosure form or the insurance company will appeal the case. Most people sign—and that is why you do not hear about these cases.

The insurance companies refute much of what is documented in Bourhis’ book. The claim they make most often is that they pay out billions in disability claims. For the most part they do, but those payouts are mainly for short-term disability; like broken arms and legs. What they refuse to share publicly is the percentage of long-term disability claims that they deny. Although it cannot be documented, it appears that if your income is around $50,000 or above you are likely to be targeted for denial of a LTD claim. It is estimated that denying just 10% of those claims amounts to billions over a decade.

If you have a LTD policy you really need to read this book. If you have recently become disabled and are counting on a LTD policy you would be a fool not to read this book immediately.

According to Ray Bourhis’ Insult to Injury in 1945 congress enacted the McCarran-Ferguson Act, which prevents the federal government from enacting any insurance consumer protection. Period! Out of the millions of pages of regulations and laws there is not one single word that regulates insurance practices.

Most states have enacted their own laws against unfair insurance practices that makes it illegal to:

• engage in unreasonable delay
• underpay, terminate, or deny valid claims
• put their financial interests above those of their policyholders
• conceal benefits from claimants
• interpret policy ambiguities against insured
• use their superior size or wealth to intimidate or undersetlle claims
• force policyhoders to sue them in order to obtain benefits due

Insult to Injury goes on to explain that not a single state has an insurance department that has the authority to sue an insurance company on behalf of a cheated claiment. What most state’s department of insurance (DOI) do is investigate whether insurers are violating unfair practice laws and fine them. It is rare that a state fines an insurance company.

In 1974 congress enacted ERISA and orginally was designed to protect retirement benefits against mergers, acquisitions, and other corporate activities that might endanger a retirement plan. ERISA, when originally enacted, had nothing to do with state regulations.

In 1987 Justice Sandra Day O’Connor wrote an opinion regarding the case Pilot Life v. Dedeaux. As a result the legal rights to protect policy holders from fraudelent and bad-faith insurance practices by the states was all but eliminated. It is an ironic twist that the McCarran-Ferguson Act that prevented federal regulation of insurance companies was extended by a Supreme Court ruling.

Currently ERISA eliminates all state insurance protections on all policies purchased at work. Because ERISA provides no remedies for misrepresentation the consumers who acquire their LTD policy through work have no anti-fraud or bad-faith protections under federal or state laws. None!

On April 7, 2003, the Supreme Court of the United States handed down a decision on State Farm Mutual Automobile Insurance Company v. Campbell, which restricted the amount of punitive damages that a state court could award. Punitive damages, said the Court, had to have a “single digit” relationship with actual (compensatory) damages awarded. That is, if damages range from $200,000 to $300,000 the punitive damages would be limited to $2 million or so.

On February 18, 2005, President Bush signed into legislation a law that he had personally proposed. The law effectively banned all state court class actions and forced them to be filed in federal court. He said that it would protect Americans from “frivolous litigation.”

Learn more about LTD claims made under both ERISA and non-ERISA. Read Ray Bourhis’ Insult to Injury.

If you are someone who has never been denied a long-term disability claim or know someone who has had the unpleasant experience, then you might think that the book is sheer fantasy. Coming from the perspective of having someone close to me who has gone through the LTD grinder this book reads more like a Shakespearean tragedy that leaves you with a heavy heart. Just knowing that people across the U.S. are being denied LTD simply because someone in a nondescript office ‘feels’ that the person filing a disability claim ‘should’ be able to work is both disturbing and unconscionable.

Glass lists 15 common mistakes that LTD claimants make when filing a claim and 7 nasty things that LTD insurance providers plant in contracts to be used later to deny you benefits. The contract provisions mentioned are not required by any state or Federal law. Most employers are unaware of their existence or how they will be used against disabled employees who attempt to file a LTD claim.

The author advises you to get a copy of your disability contract (it must be furnished to you within 30 days of a written request to an employer) to see if any of these provisions are mentioned:

• The insurance company has the “discretion” to determine your benefits.
• You only get paid benefits if you can’t perform “each and every” important duty of your job.
• Your benefits are limited to 24 months if your disability is caused or contributed to in any fashion by mental illness, depression, or anxiety.
• You benefits are not payable, or are limited, if your illness is fibromyalgia, chronic fatigue, chronic pain, or any illness where the symptoms are “self reported” and thus not “verifiable” by a blood test or other diagnostic study.
• Your benefits will be terminated if the insurance company says you could work part time in any job, but don’t.

If you find any of those provisions in your contract seriously consider purchasing your own LTD insurance policy. Tip: don’t go through an employer and if you have your own company do not use any company funds to purchase the policy. If your employer or company becomes involved, in any way, when you acquire a LTD policy, the plan may fall under the ERISA guidelines. This even means if you found an advertisement for a LTD plan stapled to a bulletin board at work.

If your LTD benefits fall under ERISA you should be aware that any money paid to you is taxable income. On the other hand, if the LTD policy falls outside of ERISA’s oversight, then the benefit paid to you will be tax free. That is something to consider when most disability policies provide coverage that ranges from 60%-66% of your income.

It is worth mentioning that 99.9% of all LTD claims that are denied fall under the Federal ERISA guidelines. If your policy does fall under ERISA, then see ONLY an attorney that specializes in ERISA. These attorneys are extremely difficult to find, but do not give up until you do find one.

One thing that Glass dispels is the false belief which most of us have—that what an employer (or Human Resources employee) says means something to the insurance company. However well meaning your employer or HR person is, it means absolutely nothing to the insurance company. Insurance companies do not care if the owner of the company ‘knows’ that you are disabled, much less what someone from HR ‘thinks’. [In Robbery Without a Gun you'll learn that insurance companies care even less about what your doctor has to say about your condition---and the courts support this thinking.]

He also advises you to be cautious when the insurance company provides a ‘free’ consult to help you with your Social Security Disability claim. It only helps the insurance company to move you into a position where they can later deny your claim. Another important point is that some insurance companies will deduct the legal fees for the services they provided you in obtaining your SSDI benefits from future payments.

As mentioned previously, this is not a thick book, although I’d suggest that you read it with a pad and pencil by your side because you will want to take notes. There are a lot of nuggets of knowledge to mine and any one of them you might find priceless.

When Rost brought an illegal practice to his employer’s attention he thought he was doing a good thing. Little did he suspect that his efforts to help his employer avoid running afoul of Federal law was placing his career in something akin to a Chinese finger trap.

The problem began when as vice president of marketing for Pharmacia he was responsible for both U.S. and global marketing of a human growth hormone named Genotropin. What he first suspected, then later established, was that Pharmacia’s sales reps were in the practice of encouraging physicians to write ‘off-label’ prescriptions for Genotropin to be used for life-longevity. In the U.S., as well as in most of the world, it is a Federal offense for a pharmaceutical company to encourage physicians to write prescriptions for purposes other than the use for which they are approved. In the U.S. it is the Federal Drug Administration (FDA) which approves a drugs use.

What Rost uncovered were incentive programs to encourage the sales of Genotopin for life-longevity purposes. In addition, he also discovered that some countries used practices that made the sales of the drug appear higher than they should have been—also a Federal violation. The result was that the annual sales of Genotopin fraudulently exceeded $600 million annually.

When Pfizer purchased Pharmacia they had no idea that the sales for Genotopin were inflated and the actual sales were less than what the accounting books showed. Rost knew that Pfizer overpaid for Pharmacia. He knew that the illegal practices that he had uncovered were partly to blame for the inflated sales figures. Rost wanted Pfizer to know what he knew so they would be able to correct the situation and head off any Federal action that could be brought against them.

The harder he tried to convey to Pfizer the illegal practices that he had uncovered the tighter the metaphorical Chinese finger trap tightened around his career. Clearly, it appeared that Pfizer was not eager to act immediately on what Rost was telling them. They especially did not want their investors to hear anything that sounded like fraud or possible Federal violations.

You would think that Pfizer might appreciate knowing about fraud and Federal violations. Instead, what resulted is that Pfizer distanced themselves as far from Rost as possible. They could not fire him though. When there is an allegation that results in an investigation the company is required to retain the whistle blower. That did not keep Pfizer from doing everything possible to keep tabs Rost’s activities. His phone calls were screened, his phone was tapped, and his emails watched.

What you do not discover until the end of the book is that Rost risked a $600,000 a year job to bring the illegal practices to light. At first he was more interested in protecting his employer from Federal action, but when Pfizer took an offensive position forcing Rost to go outside the company for protection, he had no choice but to retain a lawyer and to make his allegations public.

Probably the most disturbing chapter in the book is chapter 19, How Corrupt Is the Drug Industry? The chapter deals with the exorbitant fines paid by the pharmaceuticals in just the past few years. For example, Pfizer was fined $430 million for encouraging off-label prescriptions of Neurontin. Considering Pfizer has sales that exceeded $2 billion dollars for Neurontin the fine makes little sense from a strict profit-and-loss position. The list of pharmaceutical companies that have paid exorbitant fines is too extensive to even begin to list here, but a quick Internet search results in a massive list of drug companies.

After reading Selling Sickness, by Ray Mounihan and Alan Cassels, I had to wonder if one of my 6th grade classmates went into marketing for the pharmaceutical industry.

What we did in the 6th grade as a practical joke on one of our classmates is basically what the drug companies are doing to us, as a population, in order to sell more drugs. For example, the National Institutes of Health’s guidelines for cholesterol in the 1990′s warranted treatment for 13 million Americans. By revising the guidelines in 2001, the number of Americans who warranted treatment jumped to 36 million. In 2004 the guidelines were readjusted yet again with the result of 40 million Americans needing to be treated for cholesterol.

In less than 5-years, the number of Americans in need of treatment for cholesterol jumped from 13 million to 40 million. That is a lot of new prescriptions that had to be written for medication to control cholesterol levels. If you are thinking that the pharmaceutical companies stand to make a huge profit, you would be right,—and therein is the motive for the guideline revisions.

Taking the profit motive out of the picture for a moment, what can be the harm? So what if someone takes medication for better health? What can be the harm? In short—side effects. There are some people who need the medication because of excessively high cholesterol; that cannot be argued. What can be argued is whether an otherwise healthy person needs medication to treat something for ‘better health’ when the side effects of the medication will do more harm than good.

Maounihan and Cassels paint a disturbing picture of how guidelines are revised to create a larger customer pool for their pharmaceuticals. How the FDA has turned from a consumer watch dog to an arthritic hound.

The authors also expose the pharmaceutical companies’ tactic of hiring celebrities to go on talk shows to bring attention to a particular health problem like ADD. What the public never learns is that the celebrity is well paid by the pharmaceutical company to bring this ‘awareness’ to the public’s attention. When challenged, the pharmaceutical companies can disclaim that the celebrity was hired to sell their drug(s). After all, the celebrity is there only to bring public attention to the ‘disease’. This raises another issue that the authors discuss in some detail; how many viewers are going to self diagnose and request the drug from their physician?

After reading the book, you may find yourself challenging your doctor’s diagnosis, because by the standards of only a decade ago you would be considered a ‘healthy specimen’.

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