CHAPTER THIRTY : LUNG CANCER HEALTH INSURANCE ISSUES
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Under American law, two parties can agree to pay for a service or enter into any other contract. Under extreme circumstance, an agreement can be said to be so unfair as to be unconscionable, or be unenforceable because it involves illegal conduct or conduct which offends public policy. However, in most contract cases including those involving health insurance, the court's task is to determine what was intended, first by looking at the written agreement. "It is the duty of the courts to enforce an insurance policy as it is written, and the courts are not at liberty to rewrite policies of insurance to provide coverage where no coverage was intended. Likewise, we are not at liberty to rewrite an insurance policy simply because we do not favor its terms or because its provisions produce harsh results. In the absence of fraud, overreaching or unconscionability, the courts must give effect to an insurance policy if its language is clear and its intent certain. " Black v. Aetna Ins (1)
Thus, the first task for any patient or family member is to assemble the relevant papers and to review what the health care agreement and the plan itself provides. The chief areas of dispute are as follow
1) is the treatment medically necessary and therefore should the health care provider be required to pay for it,
2) may the patient choose a hospital or physician,
The health care policy typically states that the provider will reimburse for what is medically necessary.
30.21 Consider and Evaluate what the HMO says, though you do not have to accept It
In some cases, HMO's act unreasonably and for their own financial interests. Sometimes however, a patient may fail to understand medicine or the nature of the HMO. Initially, the HMO does not have to refer you to the physician or hospital that you would like or prefer. They do not have to provide the best care, only acceptable care with the standard of care of the particular speciality or area. The very nature of the HMO is to achieve cost savings through negotiation and centralization of certain tasks. Thus, if the HMO has retained qualified hospital A to provide certain treatment, you may not simply opt for hospital B because you like it better, even if there is evidence that B is a better hospital.
30.22 Change of Hospital
You do have a right to select a hospital, or more accurately participate in the selection process, if the particular physician or hospital is not as well-equipped to perform a task as your own. Thus you would need to demonstrate their selection's lack of, at least lesser qualification as compared with your choice.
30.23 Defining what is Medically Necessary
Let us look at three examples of HMO problems, noting that the approach to each will be different:
1) John Smith has stage 4 lung cancer. The doctor has prescribed an FDA approved medication to relieve pain which while effective is very expensive. The HMO has delayed for several days providing the appropriate approvals.
2) After being given a negative prognosis from the treating oncologist, the Smith family decides that the approach which has the best chance of cure is an innovative approach being taken by a physician located in Los Cacos, Mexico. There are reports on the Internet of exceptional results, though the procedure is not FDA approved.
3) United States physician have experimented with a bone marrow transplant for terminal lung cancer patients. The FDA has allowed the procedure for limited use. (this is not necessarily true, but used only as an example) The HMO refuses to provide payment for the procedure.
The HMO’s delay in 1 is clearly wrong and unlawful; its refusal to approve 2 is clearly correct and lawful, and it is probably wrong in 3. Regarding 1, there have been reports of HMO’s delaying pain medication for cancer patients, figuring the cost is substantial while the long term benefits are minimal. However, no patient should suffer. If you have a family member in that situation, you should contact the HMO orally, follow up with a supervisor, send a letter, send a letter by express mail, contact an attorney, have him file a complaint, file a complaint with the insurance board of your state, have the attorney seek an injunction for the care. If your family member is in pain and you even suspect delay for financial reasons, do all these steps quickly, hopefully within 72 hours. Let them know you are looking at a substantial lawsuit if proper treatment is not provided.
In 2 there is little you can do, no HMO will (or perhaps should) approve an unusual procedure in a foreign land. If you decide on that course, you will be responsible for your own costs. Regarding 3, the approach may be similar to 1 with an exception. In 1, the HMO was simply delaying; here, the HMO’s position has some validity because the procedure is experimental. You can and should push the HMO, but if you go to court, you will need to gather medical studies and other information to establish that this course is the medically appropriate one.
30.3 BE ASSERTIVE BUT KNOW AND FOLLOW YOUR CONTRACT
Assuming the HMO is acting unreasonably, as a lawyer, one sees a somewhat strange phenomenon in how people approach the legal system. You may see a client send four letters and file a formal complaint over damage to a $121.00 dress. In a divorce, two combatants may spend hours arguing over the disposition of a piece of furniture or a lamp. Yet sometimes people with real concerns, and family members of those with cancer are strangely passive. Certainly, if you believe a particular type of treatment is necessary, you should be aggressive in demanding . Document your concerns in a letter.
30.31 Make Sure that Necessary Papers Have, In Fact, Been Submitted by Your Physician
In some cases HMO’s delay things, but in others their requests for information or supporting documentation are ignored. Certainly it is irritating for a well-regarded oncologist to spend hours each week justifying a decision he made to a junior clerk at an HMO, but it must be done. In for example 1 above, an expensive pain-reliever, an HMO auditor may ask why a less-expensive drug could not be substituted, and ask the doctor as a participating physician to provide information supporting his decision. Generally, the doctor must provide information reasonably requested an pertinent to the treatment decision. As a patient, you may need to check that your anger is properly directed towards the HMO, and not a doctor who neglected to supply information the HMO requested.
30.32 Your Contract and Appeal Procedures
Most HMO contracts provide for a specified appeal procedure. If you go to court, many judges will require you to first exhaust the contractual procedures before seeking the court’s assistance. Get your contract, read it, understand your procedures, and follow them.
Assuming you believe the HMO is at fault, a letter to them should outline the following:
1) the treatment which is needed, and has been rejected,
2) the medical justification for the treatment, attaching your physician letter of explanation, and any medical studies or other data you have located,
3) a statement that the plan member will suffer severe and irreparable physical injury as a result of the delay in treatment, and noting that such injury may have already occurred because of the HMO's delay,
4) noting that you are contacting an attorney to institute legal action as a result of the HMO's willful and deliberate disregard of the patient's health and well-being, and expect to institute legal action against the responsible individuals as well as the plan itself.
Consider placing particular responsibility upon the particular person who rejected the treatment. You should fight, and in most cases you will win. From an health insurer's point of view, they may want to limit certain types of health care costs, but will alter their position if the possibility of legal or other exposure exists. There have been several large verdicts against HMO's.
30.5 WHOM TO CONTACT WHEN YOU HAVE AN HMO PROBLEM
If an HMO fails to authorize treatment which you believe is medically justified, you could write to the following:
1) the HMO case manager,
2) his or her supervisor,
3) the state insurance commission who deals with health care issues,
4) the central office of the health insurer,
5) members of the board of directors of the HMO,
6) your local newspaper or radio station.
7) state assemblyman or representative,
8) an Internet website dealing with this issue,
Generally form letters and copies receive less attention than the original. If you want action, address your correspondence to each of the above. Letters should be direct but brief. No letter should be longer than a page, but do include some brief documentation supporting your position.
If an HMO refuses to authorize necessary treatment, you can contact an attorney to file a lawsuit. A lawsuit or claim is initiated by filing a complaint with the court which identified the litigants, what the defendant has done wrong and why, and how the plaintiff has or will be injured by that wrong. While it is preferable to have an attorney representing you, set forth below is a form of complaint designed for use by an individual representing himself.
ROBERT PATIENT SUPERIOR COURT OF NEW JERSEY
ESSEX COUNTY - LAW DIVISION
Plaintiff
vs Civil Action
INSURANCE COMPANY, COMPLAINT AND JURY DEMAND
Docket No.
Defendant
COUNT ONE (BREACH OF CONTRACT)
1. Plaintiff resides at 43 Spring Street, Maplewood, New Jersey. Defendant is a health maintenance organization licensed by the State of New Jersey, with offices at 40 Broad Street, Newark, New Jersey.
2. Under a contract with the Defendant, Plaintiff is entitled to medical and hospital treatment with the costs of such services to be paid by the HMO.
3. Plaintiff has lung cancer. Only July 23, 1999, Plaintiff's physician recommended hospitalization to provide relief from pain associated with plaintiff's cancer. Such recommendation was reasonable and necessary for treatment of Plaintiff's condition.
4. Defendant HMO has failed to approve reimbursement to the appropriate medical and hospital providers for such treatment despite oral and written requests from Plaintiff and his physician.
5. As a result, Plaintiff has been denied medically necessary treatment. More particularly, as a result, Plaintiff has suffered substantial pain and his medical condition has deteriorated as a result of the defendant HMO'S willful and deliberate refusal to perform its contractual obligations.
6. Plaintiff believes and therefore alleges, that defendant has constructed procedures to deprive plaintiff and others of the medical treatment to which they are entitled for the purpose of reducing its costs. Furthermore, Defendant HMO has concealed and misstated its reasons for denying treatment to delay and frustrate Plaintiff and his physicians from arranging for required medical services. The above conduct violates the terms of the Plaintiff's insurance contract, insurance statutes and other applicable law.
WHEREAS, Plaintiff demands judgment against Defendant for compensation damages, punitive damages, and injunction requiring Defendant to perform its contract and restraining it from further violating applicable insurance claims.
JURY DEMAND
Plaintiff requests a trial by jury.
Dated: July 5, 2003
Robert Patient
30.61 Comment on the Form Complaint
This is based on New Jersey practice; practices vary from state to state. Generally, what a complaint does is explain who the Plaintiff and Defendant are where they are located, what the Defendant did wrong, how the Plaintiff was injured by the Defendant's acts, and what Plaintiff is seeking.
File the complaint with the court with the necessary filing fee, get a docket number or a copy of the complaint marked "filed", and serve that complaint on the Defendant. You can ask a local process-server or subpoena service to serve or hand deliver the complaint to the HMO.
You may wish to send the accompanying Letter to the Defendant
Enclosed please find a copy of the complaint which I have filed with the Superior Court. I confirm that as of this date, you have not authorized the treatment which I need. If this changes, please immediately call me and my physicians. If you have any questions regarding this Complaint, you may call me directly at 973-467-8040 though I may be retaining counsel shortly.
30.7 COURT DECISIONS
One federal court rejected a proposal for high-dose chemotherapy with stem cell transplants for a small cell lung cancer patient:
"The court finds that the evidence establishes that HDC/PSCR [high-dose chemotherapy with peripheral stem cell rescue] for small cell lung cancer is an experimental or investigational rather than an accepted standard of practice. The protocol, the consent form, the medical evidence received each described the procedure in terms which emphasized its experimental or investigational nature. The purpose for which the plaintiff is being treated is to either cure or give him relief from his condition or prolong his life, and in utilizing HDC/PSCR, there is no evidence to this point that that will be accomplished.
The court also found that the treatment was not medically necessary as defined by the policy since the "efficacy of this procedure is undetermined, and it is not possible to know whether the procedure could be omitted without adversely affecting plaintiff's condition or the quality of medical care." Hendricks (2).
There is a tendency to paint the HMO as a heartless bureaucrat denying patients needed therapy to save money. However, the therapy that was proposed never became standard (chemotherapy with stem cell rescue) and there was no medical basis for a court or an HMO to believe that it would extend life. While on a humanitarian basis one would like to give a patient and his physician the right to select the treatment they deem best, that is not the HMO’s role. Instead the HMO need only provide reimbursement for treatments with demonstrable validity, leaving the patient to pay for unusual and unverifiable experimental treatments from his own pocket.
REFERENCES
1. Black v. Aetna Ins. Co., 909 S.W.2d 1, 3 (Tenn. App. 1995)
2. Hendricks v. Central Reserve Life Insurance Co., 39 F.3d 507, (4th Cir. 1994).