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Mark R. Osherow

Mark Osherow’s Answers

31 total

  • My insurance company is calling my surgery experimental and not going to pay for it because they did not get precertification

    from the Dr.'s office and the Hospital. Am I going to be responsible for this bill ?

    Mark’s Answer

    Whether this claim must be covered may well turn on whether the denial is arbitrary and capricious under ERISA. You should seek the advice of counsel familiar with this area of law. The plan under which your employer provides coverage should be reviewed. There also may be internal appeals that must be timely filed to preserve your rights. Be careful to file timely and follow the procedures that have been set up by the plan administrator and your employer.

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  • I have a commercial 3rd party GL insurance claim...

    If I need to litigate with the carrier can I recover my attornys fees?

    Mark’s Answer

    In a third party claim the underlying litigation is against the insured. If that claim allows for fees they can be recovered, if you succeed. Chapter 627, Florida Statutes will generally provide for a fee awarded should you need to then litigate with the GL insurer to obtain payment. So the answer depends on the facts of your situation which are not clear from the question.

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  • What is the proper way to object to summary judgment evidence in Federal court?

    Do I just file a response in opposition to SJ?

    Mark’s Answer

    You should at a minimum review Rule 56 of the Federal Rules of Civil Procedure, the court's local rules, and any requirements the judge may have. All of this is available on-line. You should consider retaining an attorney to assist you.

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  • Can a motion for summary judgment be granted when a case is not at issue?

    The court granted our leave to amend, and we amended the complaint for the 2nd time. There are new defendants, and not all of them have been served yet. Can a summary judgment be granted for the defendants that have been served with the 2nd amen...

    Mark’s Answer

    Yes.

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  • How long do i have befor time limate is over to file suit against a doctor who has done sergery on me n messed me up ?

    dr. told me i had a hernia n gallblatter was bad n scraped ulcers off my asophagus . during sergery he said he had removed 2 hernias taken out gallblatter n scraped ulsers on asop. he said he had to use a portion of a lapband to connect my intesta...

    Mark’s Answer

    Florida Statutes Section 95.11 states:

    95.11 Limitations other than for the recovery of real property.--Actions other than for recovery of real property shall be commenced as follows:

    4) WITHIN TWO YEARS.—

    (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

    (b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. This paragraph shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.

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  • I studied online, now they're asking me to pay an additional fee to get my degree, while this was not mentioned in the beginning

    I studied online, at an American University called MUST University and yesterday I finished all my courses. They called me up, saying I have to pay 500 US Dollars to get my degree sent to me, or 2 000 US dollars to get authentication documents (so...

    Mark’s Answer

    I fully agree with the two prior answers. This may well be a deceptive and unfair trade practice. Review of the enrollment documents/contract would be helpful. Pursuit on a class basis, may be the way to go.

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  • Who is responsible for an insurance claim if the employer retroactively changed my insurance company after I got an MRI done?

    Under my former employer, I enrolled with Insurance company 'A'. Three months later, I went to get an MRI done. I verified my coverage in addition to the MRI office verifying my coverage. Three days after my MRI, the employer retroactively changed...

    Mark’s Answer

    This sounds like more of an administrative issue than a legal issue at this point. You should attempt to work out this situation with the insurer and your employer, so that the correct information allows you to be properly covered. Your particular jurisdiction may or may not have laws that apply to this situation, and you should seek counsel familiar with such laws in your jurisdiction.

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  • If after 12 weeks of FMLA, the employee decide they can't ret'n to their P/T job, what options do they have?

    Will the employer 'fire' them? What if the employee propose working per diem or as a 1099 contractor?

    Mark’s Answer

    I would strongly suggest you search this inquiry on the Internet, to understand the FMLA, and any rights you may or may not have under your particular situation. If at that time you have a specific question pertaining to your situation you should return.

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  • Can we serve process by publication in our case?

    My reading Chapter 49 of Florida Statutes (49.011) indicates that service by publication is only allowed in certain types of cases, but it's not clear to me whether our case is one of these types. Our case is to recover money that was embezzled a...

    Mark’s Answer

    Generally, under Florida law, if the defendant is served by publication, the court does not obtain personal jurisdiction over the defendant. Rather, only what is called "in rem"jurisdiction is obtained. Such jurisdiction applied to property of the defendant in the State. You would likely not be able to obtain a money judgment against the defendant under Florida law. This matter sounds complex, and you likely need the assistance of a competent litigation attorney.

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  • Is a 47,000.00 offer fair insurance settlement for being totalled out on the highway by a semi resulting in 17,000.00 in medical

    My husband and myself are still under the care of a therapist. PTSD, severe whiplash, and ongoing body aches and pains.

    Mark’s Answer

    This is very difficult to answer from the information provided. You should strongly consider consulting with an experienced attorney to help you maximize your recovery. If you are represented, which I presume you are not, you should discuss this offer candidly with your attorneys.

    Additional things, among many others to consider: Do you have lost income? Do you have future medical expenses? Are there any permanent injuries? How much of the medical expenses is covered by insurance? Will the health insurer if any that paid bills ask to be paid back (subrogated)? Has the PTSD been related to the accident by any physician? Is this condition permanent and how does it affect your lives? Is there additional insurance coverage available? Do you have UM/UIM coverage? Has that insurance carrier authorized you to accept this settlement?

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