BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future. Today we talk to James McKenzie of McKenzie & Hall, P.A., one of Florida' s long-established and most respected plaintiffs' firms. Mr. McKenzie, based in Pensacola, discussed his focus for 2009 and beyond.

What industry now represents your primary focus for the near future? 

James McKenzie: The insurance industry has been a prime focus of our practice and will continue to be for the foreseeable future, both locally in Florida and nationally. The claims and cases are naturally very broad. Unfortunately, our region is subject to many hurricanes and in the past years we have litigated hundreds of related coverage cases.

But in terms of what' s next, we are particularly focusing on health insurance. One very important specific issue for us is the refusal of major companies to reimburse PET/CT scans, which are both cancer detection and cancer treatment monitoring procedures. One of their arguments is that the procedures are experimental, but we are confident that that argument will not prevail in light of the facts and the history of the procedures.

In another instance, the insurer will pay for PET but will not pay for CT unless the PET turns out to be positive. We' re confident on this score as well, since the medical literature clearly shows a 30 percent higher accuracy rate for integrated PET/CT treatment as opposed to just PET.

I anticipate that similar cases related to PET/CT reimbursement will be filed by us and others throughout the country. Interestingly enough, this imminent wave of cases began with just one facility in Pensacola, a client of ours that was denied reimbursement. Such local cases often underscore national relevance.

Are there areas where a firm like yours establishes its own turf, differentiating itself by taking on cases that other plaintiffs' firms don' t?

James McKenzie: That is certainly true of us. Right now we are doing ERISA health cases, in contrast to other firms that focus more on the benefits side of ERISA. It makes economic sense for us, since, based on the governing rules, we can generate a $5,000 fee on claims as small as $100. I expect, however, that other law firms will sooner or later follow our example, which, in turn, will mean a rise in the total number of such cases filed.

Any thoughts on how the new Administration and Congress will affect your practice?

James McKenzie: We have handled qui tam cases but  I expect that practice will grow now that we have a supportive federal government. Here too we are focusing on the insurance industry and its whistleblower issues.

Companies need to have whistleblower provisions in place that are crystal-clear to everyone and, of course, especially to their own employees. Those companies that do not have such conspicuous and easy-to-access programs naturally get on our radar screen.