Medical Insurance Cases
If you get your medical insurance through your employer (and who doesn’t, these days) then unless you work for the government your right to these benefits is also governed by ERISA. And the insurance companies and HMOs don’t like to pay for expensive treatments, surgeries, and drugs, even when your doctor says you need them. So they have internal “guidelines” that are written to give them cover to deny needed treatment as not “medically necessary.”
So, as an ERISA specialist I help a lot of people get the health care their doctors say they need, when the insurance company doesn’t want to pay.
Danica Dubaich v. Connecticut General Life Insurance Company
Ms. Dubaich’s back hurt so much it was difficult for her to pick up her young daughter. Her physician said that she needed multiple level artificial disc replacement (“ADR”). ADR is the next big thing in spinal surgeries. Traditional fusion “fuses” or fastens the spinal bones together to immobilize the injured disk. This works for a while, but causes a loss of spinal mobility and puts additional stress on the uninjured discs. Instead of this ADR replaces the damaged discs with artificial ones. Testing shows that single level or multiple level ADR has much better short and long term results than fusion.
But ADR is expensive, and insurance companies don’t like to pay for it. So CIGNA denied Ms. Dubaich’s claim as “experimental,” in spite of the fact that ADR is routinely used in hundreds of hospitals around across the country.
Once I sued CIGNA to pay for the surgery its lawyers realized that its argument that ADR was experimental wouldn’t stand up. So CIGNA tried to also say the ADR wasn’t “medically necessary” and also that multi-level ADR was not approved by the FDA. However, as Judge Gee agreed when she ruled in favor of Ms. Dubaich, CIGNA hadn’t made those arguments when it denied Ms. Dubaich’s claim, and insurers are forbidden from raising new arguments for the first time in litigation.
Frank PDL v. Trustees of the ILWU-PMA Plan
I am not using Frank’s last name because his case was heard by an arbitrator and, as such, isn’t a matter of public record. Frank was a young man with four seriously damaged spinal discs. The discs were adjacent so the traditional treatment, fusion, would have involved fusing a major portion of Frank’s spine. This would have been crazy for a man Frank’s age. First, a four level fusion would have severely reduced his spinal mobility. More importantly, the added stress the fusion puts on the adjacent, healthy discs would have eventually damaged them, requiring an even more extensive fusion.
Fortunately Frank had a great doctor, who recommended artificial disc replacement (“ADR”). With ADR, instead of fusing the spinal vertebra together the damaged disks are replaced by artificial discs. With Frank, the process went great, when he had the surgery he was disabled, in constant pain, and living on narcotic painkillers. After the surgery (and one follow on procedure) Frank was almost as good as new, back at work, riding his bike and playing golf.
Of course ADR is expensive, so medical insurers and plans don’t like to pay for it. The Plan refused to pay for Frank’s treatment, claiming that it was experimental and “not medically necessary.” The “experimental” claim was based on the argument that (at the time) multi-level ADR had not been approved by the FDA. However, as I pointed out and the arbitrator agreed, under the law once a device or drug has been approved by the FDA for one purpose, a physician may prescribe it for any purpose, and these “off label” uses are a common and necessary part of medical practice. As for “medically necessary,” as Frank’s doctor testified, given Frank’s young age and his number of damaged discs, ADR was the only reasonable treatment.
The arbitrator’s ruling is here.
Sarah D. V. Aetna Life Insurance Company
Sarah (she was a minor, so I won’t be using her name) needed residential psychiatric care. Her insurer, Aetna, didn’t want to pay for it, claiming that it wasn’t “medically necessary.” Sarah’s family paid for the treatment, and sought a lawyer to sue Aetna. The lawyer they found had some personal issues (and I won’t be using her name either) and failed to make a claim for most of the treatment costs. The lawyer also had done nothing to develop the Record, which is crucial in ERISA cases.
When the family hired me I was able to get the missing claims included and (with the help of the defense counsel), the Record put together. After that the issues were pretty simple. The Arbitrator agreed with our position that Aetna shouldn’t be making decisions about what sort of treatment a patient needs without actually examining the patient. And the Arbitrator also agreed that Aetna had simply failed to follow its own procedures when it denied Sarah’s claim for treatment.