HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, September 22, 2007

Health Insurance Lawsuits: Post-Claims Underwriting reports on an increasing number of lawsuits against health insurers for post-claims unwriting (canceling policies on discovery of alleged inaccuracies in initial application) and discusses briefly an upcoming California case that could help clarify the law.

William Shernoff says he has been bringing lawsuits over canceled health insurance policies since the 1980s. Lately, however, that part of the Southern California plaintiff lawyer's practice has exploded: Last year, Shernoff filed about 70 lawsuits for people who have gotten stuck with hefty medical bills when an insurance company revoked their coverage by claiming they falsified or omitted important details on their applications. He's on pace to file about the same number this year.  So far, Shernoff says, litigation over the insurance companies' practice -- often referred to as post-claims underwriting -- hasn't led to any significant case law. . . . .

But next week, the Santa Ana, Calif.-based 4th District Court of Appeal will hear arguments in a closely watched case that challenges Blue Shield of California's practice of rescinding coverage based on inaccuracies in an application. If the challenge in Hailey v. California Physicians' Service, G035579, succeeds, plaintiff and defense lawyers say more cases may wind up in trial -- or lead to more lucrative settlements.

According to Michael Nutter, a Santa Ana solo representing the plaintiffs, Steven Hailey suffered a catastrophic car accident shortly after he and his wife enrolled in a health plan. When Blue Shield rescinded his policy, Hailey had to sign up with a new insurer and wait six months for surgery with a torn urethra and other injuries, Nutter said.

In court papers, attorneys for Blue Shield claim that Hailey lied on his application about his weight and concealed information about a recent hospital visit and a host of medical conditions.  More broadly, Blue Shield argues (.pdf) it can rescind coverage when someone's made a misrepresentation material to the company's decision to offer them a health plan.

Central to the case is California Health and Safety Code §1389.3: It suggests health care plans are responsible for resolving all reasonable questions about an application before entering into a contract, and generally prohibits post-claims underwriting. But it also expressly says it does "not limit a plan's remedies upon a showing of willful misrepresentation."

Plaintiff attorneys in the field contend (.pdf) that a showing of willful misrepresentation is required before yanking coverage; defense attorneys say the mention of willful misrepresentation does not amount to a prerequisite.  . . . If the 4th District requires a showing of willful misrepresentation, health insurers will likely find it harder to get cases thrown out early. "Even if the plaintiff's excuse was unbelievable, you might have some judges say, 'Well, let's have a jury deal with that,'" Pimstone said. Shernoff, of Claremont's Shernoff Bidart Darras, would jump at the chance to take other claims before a jury. In an amicus curiae brief filed in the Hailey case, Shernoff claims that Blue Shield has rescinded many members' coverage without investigating whether they intended to deceive the company.  "That means all the past decisions could have been in bad faith," he said, which could provide grounds for punitive damages.

September 22, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2007

Updates on SCHIP and Threatened Veto

The Government website discusses recent visits from the new OMB Director Jim Nussle  to Congress concerning the SCHIP program and a vote to re-authorize it. 

President Bush has threatened to veto emerging State Children's Health Insurance Program legislation and appropriations bills that are $23 billion over his fiscal 2008 budget request. Even as he was starting meetings with key Democratic leaders and members of the Appropriations and Budget committees this week, Nussle, the former House Budget chairman, made it clear that he is not about to give ground on Bush's demands. . . .

Nussle lambasted the outlines of SCHIP legislation Democrats hope to send to Bush's desk by the end of the month as "veto-bait" and a "political strategy" to paint the administration as insensitive to low-income children more than a serious effort to renew the program.

"What they're doing is choosing political strategy over kids ... they can't get their work done, so they're going to send up something that they know is veto bait," Nussle said. "Everyone knows that; it's been as telegraphed as just about anything around here."  From a philosophical standpoint, Nussle rejected the proposed expansion of SCHIP and efforts to finance it through a cigarette tax increase.

"I think it will end up basically being the first big tax increase on the part of the Congress, and the president's been clear on that. So here we have another situation where we had an opportunity to improve a program that had unsustainable growth, and that was serving people outside of its ... original intent, and actually causing, potentially causing, people who were already under private insurance to potentially shift to government-run insurance, and that seems to be counter to everyone's intent," Nussle said. "So we'll have to look at it. But at this point in time, it looks more like a political strategy in search of a potential solution."

Democrats Monday answered Bush's veto threats by pointing to his 2004 campaign, saying he promised to enroll more children eligible for health insurance.  In a floor speech, Senate Majority Leader Harry Reid, D-Nev., pointed to the bipartisan support for the Senate bill and said the Senate "will not be intimidated by the president's veto threats."  A spokesman for House Speaker Nancy Pelosi, D-Calif., noted that all but three Republicans supported the proposed cigarette tax increase in the House version as part of a GOP motion to recommit, and that the majority of the bill's $272 billion, 10-year cost was financed by Medicare spending cuts.  "We will get a bipartisan bill to the president that insures millions more children, that is fully paid for and does not increase the deficit. For the sake of America's children, we hope the president will sign it," said Pelosi spokesman Nadeam Elshami.

The stalemate over SCHIP mirrors that over fiscal 2008 appropriations, as none of the 12 annual spending bills are likely to make it to Bush's desk in time for the end of the fiscal year on Sept. 30. That means an interim continuing resolution will be necessary to fund government operations, as will a short-term extension of the expiring SCHIP.

The Washington Post reports further that it isn't just the Democrats in Congress who favor this bill.  In today's paper, it states,

Republicans reacted angrily yesterday to President Bush's promise to veto a bill that would renew and expand the popular State Children's Health Insurance Program, raising the likelihood of significant GOP defections when the package comes to a vote next week.

"I'm disappointed by the president's comments," said Sen. Charles E. Grassley (R-Iowa), who urged Bush, in an early-morning telephone conversation yesterday, to support the emerging bipartisan compromise. "Drawing lines in the sand at this stage isn't constructive. . . . I wish he would engage Congress in a bill that he could sign instead of threatening a veto."

September 21, 2007 | Permalink | Comments (0) | TrackBack (0)

New Source of Life-Saving Stem Cells

Forget those old debates over embryonic stem cells -- Daily Kos points to an interesting article concerning a new scientific discovery conerning stem cells.  The Globe and Mail reports,

Men have a source of potentially life-saving stem cells between their legs.

A team of American researchers has found a way to easily identify stem cells in the testicles of adult mice that can be coaxed to turn into brain cells, muscle cells, heart cells, blood cells and even blood vessels.

One day, they say, male patients may be able to turn to their own testicles as a source of stem cells to repair an ailing heart or kidney or to fix the brain damage caused by Alzheimer's or Parkinson's disease.

The procedure would involve removing a small piece of testicle - about the same amount used for a biopsy. "We don't need a lot of material," says Marco Seandel, the lead author of a paper to be published today in the journal Nature and a stem cell researcher at the Howard Hughes Medical Institute in Maryland.

His team's work - and that of a German team also experimenting with stem cells extracted from testicles - is part of a growing international effort to look beyond the embryo for cells that can give rise to all human body parts and systems.

I have to agree with the editors at DailyKos who write, "Rarely has any medical breaththrough offered so many potential benefits to the population, while also providing such bounty to late night commedians."

September 21, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2007

Plenty of Flu Vaccine

After several years of shortages, this year there is plenty of flu vaccine for everyone.  Time Magazine reports the CDCs effort to encourage individuals to take advantage of the new supply: 

The ample supplies have the government urging vaccinations not just for people at highest risk of dying from influenza, but for anyone who wants to avoid a week of aching misery.

"Flu is a formidable foe," Dr. Julie Gerberding, head of the Centers for Disease Control and Prevention, said Wednesday. "It is not an illness we should be complacent about."

But new CDC data show only a fraction of people who need flu shots the most get them, including just one in five babies and toddlers. And there's wide geographic variation, with Rhode Island reporting the most high-risk adults vaccinated and Nevada the fewest.

Shots aren't the only option. Wednesday, the government ruled that it's safe for younger kids than ever before to try a nasal-spray vaccine called FluMist. Once only an option for people ages 5 to 49, FluMist now can be used by children as young as 2.

Flu usually peaks in February, so a winter vaccination isn't too late. Still, Gerberding advised seeking vaccine early in case flu begins striking before the usual November.

September 20, 2007 | Permalink | Comments (0) | TrackBack (0)

Palliative Care

This week's Journal of the American Medical Association contains a brief article discussing the adoption of palliative care by hospitals.   The article provides a concise definition and overview of the history of palliative care.  It states in part,

Despite advances in medicine and medical technology, there is a growing population of aging patients with complex health problems who are poorly served by even the best intensive care units. To help these patients, who often have multiple chronic conditions or various complications of acute conditions, hospitals are turning to palliative care, which focuses on symptom management, communication, and other means to improve quality of life for patients and their families. 

Palliative care may be delivered in concert with curative or life-prolonging medical care and is not prognosis dependent. These features distinguish it from hospice care, which offers symptom management for patients who are facing a terminal illness and no longer wish to undergo life-prolonging treatments, as well as other kinds of support for these patients and their families.

Between 2000 and 2005, the number of hospitals with palliative care programs grew by 96% from 632 to 1240, according to the Center to Advance Palliative Care, which analyzed data from the 2007 American Hospital Association Annual Survey of Hospitals.

The field of palliative and hospice care became formally recognized as a subspecialty by the American Board of Medical Specialties in 2006. A record 10 specialty groups—anesthesiology, emergency medicine, family medicine, obstetrics and gynecology, internal medicine, pediatrics, physical medicine and rehabilitation, psychiatry and neurology, radiology, and surgery—endorse hospice and palliative medicine as a subspecialty of their fields.

September 20, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2007

USC Law Prof and Schizophrenia

The LaTimes recently ran this amazing and inspirational story about Professor Elyn Saks discussing her new book concerning her Schizophrenia.  The article reports,

Saks has schizophrenia, a severe mental disorder often characterized by social isolation, disorganized speech, delusions and hallucinations. She has defied the prediction of a doctor who once said she would never lead an independent life. She has even flourished, thanks to a strict regimen of medication and talk therapy.

Now she wants to dash the myths surrounding an illness that affects 3 million Americans: Schizophrenics aren't all emotionally out of touch, shouting and swiping at gremlins, shut away in hospitals. Like her, some lead productive lives with good friends, loving spouses and precious emotional triumphs.

At 51, Saks says, the time has come to reveal her secret. The San Francisco speech was one of her first major public forays.

Like the story of fellow schizophrenic John Forbes Nash, the Nobel Prize-winning economist and mathematician whose life was portrayed in the book and film "A Beautiful Mind," Saks' life illustrates not only the stresses mental illness places on personal and professional relationships but also how they can be overcome. . . .

On Aug. 14, Saks' memoir, "The Center Cannot Hold: My Journey Through Madness," was published. The secret was out.

As she prepared to address the American Psychological Assn. convention, Saks fidgeted.

"I'm nervous," she said.

Her book had received positive reviews. But there were hints of negativity: One USC worker told Saks she would have never gone to dinner with her had she known of her schizophrenia, afraid that one of Saks' delusional episodes could occur at any time.

Saks was speaking to her first large audience since her memoir had been published. She was never comfortable with public speaking, and her hands shook visibly as she took the podium, introduced by her old friend Steve Behnke.

When she finished, a lone woman rose to her feet, followed by more audience members. Quickly, the entire crowd was standing. The applause was prolonged and emotional as listeners lined up to speak with her.

September 19, 2007 | Permalink | Comments (0) | TrackBack (0)

September 20th: Two Great Events

My apologies for not posting these events sooner.   If you are in New York or Chicago tomorrow, you have a wonderful opportunity to attend an interesting and educational health law event.

DePaul University College of Law, its Health Law Institute, Center for Intellectual Property Law & Information Tehcnology Center for Public Interest Law and International Human Rights Law Institute and Doctors without Borders, present "Intellectual Property and Access to Medicines in the Developing World."

The program runs from 3-5pm tomorrow at the DePaul Center Room 8805, One East Jackson Boulevard, Chicago.  More information is available here.

Brooklyn Law School and its Center for Health, Science and Public Policy and the ABA Antitrust Section Committee on Health Care and Pharmaceuticals present, "Balancing Competition and Goverment Allocation of Health Care Resources:  The Berger Commission Report."

The program runs from 9am-12:3pm, at Brooklyn Law School, Subotnick Center 250 Joralemon Street, Brooklyn, New York.  More information is available here.

September 19, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2007

TB Patient and Potential Suit against CDC

Over at Concurring Opinions, Professor Daniel Solove looks into whether the infamous TB patient may sue the CDC for release of his name.  Professor Solove thinks that he may have a case and provides this overview of Mr. Speaker's life and potential lawsuit,

The WSJ blog points to this interesting update about the TB patient who was quarantined for having a highly-resistant strain of TB. I blogged about the case here and here. According to the news story, times aren't very good from Andrew Speaker, the TB patient:

Speaker was released from National Jewish on July 26, his treatment successfully completed. He takes 11 pills every morning at 8 a.m., supervised by public health officials who drop by on their way to work -- a standard regimen he will follow for the next two years to make sure the TB has been fully eradicated. He's in excellent health and has gone back to his previous routines, unmasked and unquarantined.

But his personal injury law practice is floundering, and his life is far from normal. His existing clients have stuck with him, but there have been no new clients since the ordeal began. The perception that he's a selfish jerk who thought nothing of exposing others to a deadly disease lingers.

"The CDC told everyone that I only care about myself," he said. "They made statements they knew were wrong. They intentionally went after my family and our character." . . . .

Speaker is also being sued in Canada for $1.3 million by eight passengers on his flight from Prague to Montreal for potentially exposing them to TB plus pain and suffering. The brother of one passenger is also suing.

At the end of the article is this interesting tidbit:

Does Speaker have any plans to sue the CDC?

"They're a federal agency. They have immunity," he said in resignation. "It's easier to think this guy is a jerk than that a government agency got together to intentionally misinform the public. That's much harder to believe."


According to the news reports, Speaker's name was disclosed by government medical officials (probably CDC officials trying to cover their behinds for screwing up so badly). Medical officials have legal and ethical duties to maintain confidentiality. There's also a potential Bivens action for a violation of the constitutional right to information privacy. See Whalen v. Roe, 429 U.S. 589 (1977). Most circuits recognize the constitutional right to information privacy, and it is violated by unjustified disclosures of personal information, especially medical data. For example, in Doe v. Borough of Barrington, 729 F. Supp. 376 (D.N.J. 1990), the court held that the police could be liable for disclosing to a person's neighbor that the person was HIV positive. There are many other cases on point.

The short of it is that Speaker does have a case against the CDC if he can prove that CDC officials leaked his name and/or other medical information. It is clearly established that government officials have a duty of confidentiality of medical data under the constitutional right to information privacy in most circuits, so any qualified immunity claims would not bar liability (qualified immunity applies if the constitutional violation is not clearly established). . . .

September 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Hillary Clinton Health Care Reform Proposal

Senator Hillary Clinton announced her proposal for health care reform today.   Her website states,

Building on her proposals to rein in costs and to insist on value and quality, her American Health Choices Plan will secure, simplify and ensure choice in health coverage for all Americans. This Plan covers every American - finally addressing the needs of the 47 million uninsured and the tens of millions of workers with coverage who fear they could be one pink slip away from losing their health coverage - with no overall increase in health spending or taxes. For those with health insurance, the plan builds on the current system to give businesses and their employees greater choice of health plans - including keeping the one they have - while lowering cost and improving quality.

The website then provides some specifics about how her plan would work.  Ezra Klein has his review here.  Overall, he finds much to like about the plan.  He states,

Here's the thumbnail: Clinton's plan is of the "individual mandate" variety, in which universal coverage is achieved by mandating that every American purchase health care. In order to ensure that that's both possible and affordable, the Clinton plan creates a few new coverage options, reform the insurance industry, limits coverage costs to a percentage of income, and washes your car.

Okay, it doesn't wash your car. It does open the Federal Employee Health Benefits Program to everybody, ensuring that anyone can access the same menu of regulated private options that federal employees get. FEHBP is the program that already insures millions of current government employees, including the members of Congress, by offering a variety of regulated private options to choose from. Throwing the doors to that program wide open is the most basic and ubiquitous of coverage solutions.

More importantly, the plan also creates a new public insurance option, modeled off, but distinct from, Medicare. That's a big deal: The public insurer offers full coverage and is open to all Americans without restriction. Public insurance is what I feared her plan would avoid, and instead, she embraced it wholeheartedly. The concern with a plan like this (as with the Edwards plan), is that insurers will market coverage to the young and healthy and subtly tilt the public plan's risk pool towards the old and sick (the check is that governmental plans are, for reasons related to administration costs and care incentives, cheaper). At the end of the day, there's not much that can be done about that, unless you want to tax insurers with overly healthy pools, as they do in Germany. Come to think of it, that's exactly what they should do -- it was even in the 1994 bill.

And if you don't go through the newly expanded FEHBP or the public option, preferring to keep your current insurance, you'll still be dealing with a heavily-regulated and reformed insurance industry, which can no longer price discriminate based on preexisting conditions or demographic characteristics, refuse you coverage, or deny renewal of your policy -- including if you change your job. So if you like your current insurance but quit your cubicled existence at MegaCorp, your insurer can't drop you. All this matters because it keeps the private programs from having too much capacity to undercut the risk pools of the other options. It also destroys the elements of the insurance industry's business model that rely too explicitly on screwing you over. . . .

He has some further thoughts here as well. There is more to the plan so continue reading at Senator Clinton's website or Ezra Klein's.  Firedoglake also reviews Senator Clinton's plan here - not as positive a review (putting it mildly).  The Diane Rehm show has a brief overview of the various candidate proposals for health reform here.  Senator Edwards' also has a health care plan and he provides more details on how he plans to ensure that his plan becomes the law - remove coverage from those in Congress.

September 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Genes and Privacy and Relationships

The New York Times ran a front page cover story concerning a young woman's decision about whether to have a mastectomy based on her family's history of breast cancer and the results of a genetic test.  It was a rather revealing story and revealed quite dramatically the changes that genetic information holds not just for medical decision making but also for our relationships with family members.  The article discusses the young woman's options on learning about her increased risk for breast cancer and the advice she receives from her relatives about whether to pursue surgery:

Parents who have fought cancer typically have no experience with the choices that confront their children, and guilt over being the biological source of the problem can color their advice. Siblings and cousins who carry the risk gene evangelize their own approach to managing it, while those who dodged its inheritance seem unqualified to judge.

Even as she searched for her own answer in the year after her DNA test, Deborah Lindner, medical resident, found herself navigating her family’s strong and divergent opinions on the imperfect options that lay before her.

Her father, who once feared he would lose his wife to cancer, encouraged the surgery. Her sister reminded her that cancer might be cured in a few years if she could wait.  Her aunt said she hated to see her niece embrace a course of action akin to “leechings of the Dark Ages.” A cousin declined even to take the DNA test.

But it was her mother’s blessing that Deborah most eagerly sought.  Mrs. Lindner, who had passed her defective gene to her daughter, wanted to will her more time. When she had her own breasts removed she had been married for 27 years and had raised two daughters. Now Mrs. Lindner couldn’t shake the fear that her daughter might trade too much in her quest for a cancer-free future. What if taking such a radical step made it harder for Deborah to find someone special and become a mother herself?

The Next Hurrah has a great post on the article and states,

The story is a sign of our changing relationship with our genetic inheritance -- not only the substance of the story, but the very fact that an entire family's genetic pedigree and relevant medical data, with their photos, was published as a front-page story in a major newspaper. Maybe it's the exhibitionism of the reality TV age dovetailing with the post-genome era: only one member of the pedigree declined to have his name and photo published. (Why didn't the NYT respect his wish for privacy and just leave him off the tree?) Not only do we know more than ever about our genetic makeup, we are sharing it.

Importantly, our ability to read (and publish) our genes is outpacing our philosophy of when to do so. Ultimately, the answer is simple: it's up to the individual. But those individuals will want to make an informed choice, and (as I've written many times) in a setting where about 3/4 of us believe in angels but only 1/4 believe in evolution, the infrastructure is not in place for people to be savvy consumers of genetic information. Add into the mix the self-interest of counseling companies, pharmaceutical companies, and insurance companies and you get a recipe for confusion and frustration. . . .

And who gets to read your DNA? Your employer? Your insurance company? The government? New York Gov. Eliot Spitzer has been trying to expand DNA databasing to anyone convicted of a misdemeanor, and some states apparently collect DNA from anyone arrested (whether or not they are convicted). Will your DNA become a bit of personal information like your social security number -- putatively private, but in reality requested every time you fill out a form, apply for credit, visit your dentist?

Below these pragmatic concerns there exists a deeper question about humanity and free will. How "proactively" do we want to try to control our future, and to what degree should we realize that we may be able to lightly weight the dice, but in the end we can only really control our own attitudes toward what may come? Arlo Guthrie decided not to be tested for the copy of the gene that led to his father, Woody, dying of Huntington's disease, for which there is still no treatment. He recently passed the age at which his father died, and is still going strong without any sign of illness -- he said, "I spent the day talking to my dad about it, as it were [...] I said, 'All right, there's progress. And if my kids live a day older than I get to be, we're moving in the right direction, anyway.' "

According to the The New York Times, companies are anxious to inform the public about the availability of such tests and have started rather aggressive advertising campaigns.  The Times published an article last week discussing the concerns that some have over the manner in which companies advertise the availability of genetic tests.  The Times reports,

Breast cancer runs in my family,” one woman says. She is followed in quick succession by other young and middle-aged women, who say in turn: “My mother.” “My grandmother.” “My dad’s sisters.”

So opens a television commercial that is starting to run this week in New York and elsewhere in the Northeast. It urges women to consider being tested for certain genetic mutations that can sharply increase the risk of developing breast or ovarian cancer.   But the commercial, sponsored by Myriad Genetics, which sells the test, is stirring protests from some cancer and genetics specialists, and it has brought on an inquiry by Connecticut’s attorney general. Critics say that advertising such a complex screening test to the general population might create unnecessary anxiety among women and lead to overuse of the test, which costs $3,120.  “It really preys on the fears of our society, and one of those fears is getting breast cancer,” said Ellen T. Matloff, director of cancer genetic counseling at the Yale Cancer Center. . . . .

Myriad, which said it would cooperate with Mr. Blumenthal’s (Connecticut Attorney General)request, defends the commercial and other elements of what it calls a public awareness campaign. The company says that while its test has been given to about 200,000 women since 1996, only 3 percent of the women believed to harbor the harmful mutations that can be detected by the test have been identified so far. Therefore, the company says, there is a need for much more extensive testing.

September 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2007

Chemerinsky Update: Accepts Deanship

Professor Caron updates us again.

September 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 16, 2007

Chemerinsky Hiring/"Firing"/Protential Re-hiring: What Happened?

I don't know if any of you have been following (ok, how could you not be) the whole saga of the University of California-Irvine and its dean selection process that ended up in the press because they hired and then fired (or something close to fired) Professor Chemerinsky for reasons apparently related to his "controversial" political beliefs.  Now the LA Times reports that the law school may want to un-fire him.  Professor Paul Caron has a post detailing what both sides have said and some of the commentary and debate on the process. The AP Reports on the influence of politics in the decision and quotes a member of the county Board of Supervisors,

Making Chemerinsky the head of the law school "would be like appointing al-Qaida in charge of homeland security," Michael Antonovich, a longtime Republican member of the county Board of Supervisors, said in a voicemail left with The Associated Press.

Yikes - what an open-minded tolerant individual!  The Next Hurrah explains further some of the backgrounds of indiividuals involved in the Chemerinsky decision and provides some details on California politics. 

September 16, 2007 | Permalink | Comments (0) | TrackBack (0)