Pivotal Law Group

206-340-2008
Toll Free 866-884-2417

The Pivotal Law Blog

Health Insurer Ordered to Pay $25.5 Million For Wrongful Cancer Treatment Denial

Posted Friday, November 9, 2018 by McKean J. Evans

In a timely followup to last week’s discussion of how to fight health insurance denials, this week an Oklahoma jury ordered health insurer Aetna to pay $25.5 million for denying coverage for insured’s Orrana Cunningham’s cancer treatment bills. Aetna had denied coverage for Orrana’s treatment in 2014 on the basis it was “experimental;” after being denied coverage for this treatment, Orranna passed away the next year.

The case illustrates one of the classic issues in a health insurance or disability insurance coverage dispute. In typical cases, the insured’s family doctor or specialist prescribes treatment or time off work after examining the insured, diagnosing an illness or injury, and identifying appropriate treatment. The insurer typically denies coverage based on the opinions of a physician on the insurer’s payroll; these “file review” physicians usually don’t practice medicine in the conventional sense, but work for the insurer reviewing medical records of insureds to advise the company whether to cover the treatment or disability.

As you could imagine, the doctor on the company’s payroll has a powerful incentive to tell the insurer what it wants to hear, which is typically that there is no coverage and the insurer need not pay for costly treatment. Moreover, the insurer’s physician has no history of treating the patient, virtually never examines the patient, and limits their analysis to a cursory review of the patient’s medical records. In many cases, the physician is so overworked they give little or no attention to the patient’s medical history or treatment needs before denying coverage.

That’s what happened to Orrana Cunningham. In the course of the lawsuit, it came out that Aetna’s doctor reviewing Orrana’s medical records was pressured to review more than 80 patients’ cases a day. The plaintiffs also told the jury Aetna’s file reviewers were unqualified, and were compensated based on Aetna’s profit – not based on getting claims right.

The plaintiffs’ attorney reported a juror approached him after the trial and emphasized the jury “wanted to send a message to Aetna” to fix a broken health insurance system.

Pivotal Law Group attorney McKean J. Evans represents insurance policyholders and has obtained favorable outcomes in disputes with insurance carriers in health care and other insurance disputes. If you have questions regarding a health insurance or other insurance coverage matter, contact McKean for a free consultation.

Permalink to this entry

How to Fight A Health Insurance Denial

Posted Friday, November 2, 2018 by McKean J. Evans

Many Americans increasingly find themselves dealing with huge medical bills after medical procedures their health insurers should have covered. All too often, the insurance company says “it’s not our problem, talk to the hospital;” the hospital says “it’s not our problem, talk to your insurer;” and the insured is left holding the bag, often at a time they’re already dealing with the stress of major surgery or illness.

The good news is Washington insureds have specific rights they can enforce to hold their health insurer accountable. Insurers must follow the specific terms of the policy contract and cannot deny coverage for medical bills without a reasonable basis. If insurers fail to live up to their obligations, the insurer has legal rights under Washington’s Consumer Protection Act and Insurance Fair Conduct Act, or the federal Employee Retirement Income Security Act, to seek a court order requiring coverage and requiring the insurer to pay the insured’s attorney’s fees.

Unfortunately, fighting a health insurance denial takes significant time and effort, which can be hard when you’re already recovering from surgery or illness. This is why many health carriers have been criticized for making the process difficult and confusing in the hope that insureds will simply give up without fighting the denial.

There are three common reasons why health insurance claims are denied:

  1. The insurer determines the procedure, treatment or medicine was not “medically necessary.” The definition of “medically necessary” depends on the specific policy, but, generally, when the insurer says the procedure wasn’t medically necessary they basically mean “we don’t believe you really needed it.” Sometimes the insurer uses the same rationale to deny coverage on the basis the treatment is supposedly “experimental.”
  2. The hospital or doctor who provided the treatment was out-of-network, meaning the provider didn’t have a contract with the insurance company. Most health insurance severely limits or eliminates coverage for out-of-network providers.
  3. The doctor or hospital who provided the care used improper billing and coding, causing the insurer to reject coverage because the hospital didn’t properly detail what care was performed.

The good news is many people successfully fight their health insurer’s denial of coverage. Each of the three common reasons health claims are denied can be subject to attack:

  1. Denials on the basis treatment was not medically necessary can often be fought with the support of the doctors who prescribed the treatment or care at issue. Too often, health insurers misread, gloss over, or outright ignore a physician’s rationale for prescribing treatment. Especially where treatment is expensive or time consuming, insurers have a powerful temptation to “miss” the medical records demonstrating the patient needs the treatment in order to justify denying coverage for treatments that will cost the insurer a lot of money.
  2. Denials for out-of-network treatment can be fought by insisting the insurer follow the policy contract and the federal Affordable Care Act (a/k/a Obamacare). Often, the policy contract requires the insurer to provide at least some degree of coverage even where the treatment is out-of-network. Furthermore, if the insured was treated by an out-of-network provider for emergency care, the Affordable Care Act requires the insurer to treat the care as though it was provided in-network.
  3. Improper billing and coding by the hospital can often be challenged by a thorough review of the medical records, procedure codes and billing codes.

Importantly, your insurer cannot deny health care coverage without a reasonable explanation. This means you have the right to know specifically why coverage was denied and to get the information you need in order to fight the denial. Most health insurers are required to allow you to “appeal” the denial before filing a lawsuit.

Lastly, in fighting a health insurance denial, be mindful of the applicable deadlines. All health insurance disputes are subject to deadlines that will cause the insured to lose their right to challenge the health coverage denial if the insured fails to act within a certain time period. The specific deadline varies, so it is critical to be diligent and stay aware of any applicable deadlines when fighting a health coverage denial.

Pivotal Law Group attorney McKean J. Evans represents insurance policyholders and has obtained favorable outcomes in disputes with insurance carriers in health care and other insurance disputes. If you have questions regarding a health insurance or other insurance coverage matter, contact McKean for a free consultation.

Permalink to this entry

Washington State Insurance Commissioner Fines United Healthcare for Denying Women's Health Claims

Posted Thursday, October 18, 2018 by McKean J. Evans

On September 13, 2018, Washington’s Insurance Commissioner entered into a Consent Order with United Healthcare regarding violations of Washington insurance law governing women’s health claims. United Healthcare is a health care service contractor that sells individual and family health insurance coverage.

The Insurance Commissioner’s investigation was prompted by a consumer complaint that United Healthcare improperly denied coverage. According to the complaint, United Healthcare told the consumer her claim was denied because she needed a referral for the women’s health services she received.

That violated Washington’s Direct Access law, which gives women the right to access women’s healthcare from the provider of their choice without having to obtain a referral.

In the course of the investigation, United Healthcare admitted it improperly denied similar claims for 276 insureds. As a result, many women were improperly told they needed a referral in order to obtain coverage for medical treatment.

The investigation is a reminder to insureds to know their rights under Washington law, and to carefully scrutinize coverage denials to make sure the insurer followed the law.

Permalink to this entry

ERISA Plan Administrator Cannot Unilaterally Ignore Treating Physicians, Appeals Court Confirms

Posted Thursday, October 11, 2018 by McKean J. Evans

A recent appeals court ruling emphasizes that ERISA plan administrators cannot ignore the opinions of a claimant’s treating physicians absent tangible evidence those opinions are wrong. In Hennen v. Metropolitan Life Insurance Company, the appellate court ruled the plan administrator acted arbitrarily in discounting the opinions of the claimant’s treating physicians and remanded the claim for a full and fair review.

After a back injury, Hennen applied for long-term disability (“LTD”) benefits with her employer’s group policy insured by MetLife. MetLife agreed that Hennen was disabled and paid benefits for two years. But after two years, MetLife terminated Hennen’s benefits, finding that the Plan’s limitation for neuromusculoskeletal disorders cut off Hennen’s benefits after two years of payments. Hennen sued under ERISA, arguing she fell within an exception to the two-year cutoff because she had radiculopathy.

The U.S. Court of Appeals for the Seventh Circuit ruled for Hennen. Although the court acknowledge ERISA required deference to MetLife’s decision because the plan contained discretionary language, the court noted discretionary authority did not permit MetLife to act arbitrarily in deciding Hennen’s entitlement to benefits. The court determined MetLife acted arbitrarily when it discounted the opinions of four doctors who diagnosed Hennen with radiculopathy in favor of the opinion of one physician who ultimately disagreed, but only while recommending additional testing that MetLife declined to pursue.

The court noted that even though a plan administrator is typically permitted to chose which medical opinions to rely on, its decision must still have a rational explanation. Every physician who examined Hennen since 2012 concluded she had radiculopathy. These doctors’ opinions had substantial medical support. While MetLife chose to ignore these doctors’ opinions in favor of its own employee Dr. McPhee, that decision was arbitrary. Dr. McPhee recommended Hennen undergo further testing and an independent medical examination in order to determine whether Hennen’s radiculopathy diagnosis was correct, but MetLife ignored that suggestion. The court emphasized:

“Here, MetLife took an extra step for its own benefit when it referred Hennen’s file to Dr. McPhee for review. But when Dr. McPhee recommended that MetLife take an additional step for Hennen’s benefit — to confirm whether his lone opinion that she did not suffer from radiculopathy was accurate—MetLife declined to take that step.That was arbitrary and capricious.”

The court also emphasized “Although it is reasonable for MetLife to require objective support for a diagnosis of radiculopathy, it would be unreasonable to discount clinical observations of Hennen’s treating physicians in favor of testing that is inconclusive for the condition.”

The court ordered Hennen’s claims be remanded to MetLife for the full and fair evaluation ERISA mandates.

The Hennen decisions represents an important enforcement of ERISA’s requirement that insureds and claimants be afforded a fair and objective determination of their entitlement to benefits, even where the Plan affords the plan administrator discretionary authority.

Permalink to this entry

ERISA Guide by Pivotal Attorney McKean Evans Published in WSAJ Trial News

Posted Wednesday, October 10, 2018 by Pivotal Law Group

Attorney McKean J. Evans published a guide to handling insurance claims under the Employee Retirement Income Security Act (“ERISA”) in the October edition of the Washington State Association for Justice Trial News.

Permalink to this entry

DISCLAIMER: This blog is not legal advice. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice under any circumstances, nor should it be construed as creating an attorney-client relationship. The information on this blog is a general statement of the law and may not be up to date, accurate or applicable to your specific circumstances.

Pivotal Law Group, PLLC Pivotal Law Group, PLLC
47.6084840 -122.3330190
piv·ot·al
of vital or central importance; crucial