Updated September 10, 2014.

The issues involved are familiar to many of us. We've followed one of them before when we've discussed insurance companies limiting how many doses of triptans they'll cover. Some of us have also had the experience of having our doctor prescribe a medication only to have our insurance company decree that it's too expensive, and that we must "fail" other, less expensive medications first. Our attending physician expresses his orders by writing us a prescription.

We take it to the pharmacy expecting it to be filled as written -- but will it?

Covering the specific medication prescribedwas one of the issues that led to the U.S. Supreme Court's agreeing hear the appeal of two related cases and determine whether patients can sue HMOs for malpractice or other torts in a state court when they refuse to pay for the care recommended by a doctor.

The Cases:

• Aetna Health v. Davila: Juan Davila's doctor wrote him a prescription for Vioxx. However, Aetna required two less expensive medications to be proven ineffective for him before they'd cover the Vioxx. Mr. Davila developed bleeding ulcers from one of the medications he had to try, and required emergency room care for severe internal bleeding. He says he still has complications from the incident.
• Cigna v. Galad et al.: Ruby Galad, who was covered by Cigna HealthCare of Texas, was hospitalized for a hysterectomy. Cigna specified only a one-day hospital stay would be covered. Although her surgeon recommended that she stay longer, the Cigna hospital-discharge nurse did not approve her staying longer. She had to be readmitted several days later because of complications from the hysterectomy.

Davila and Galad sued Aetna and Cigna under a Texas law allowing patients to seek damages for insurance decisions that "affect the Quality of the diagnosis, care, or treatment provided to the plans insureds or enrollees."

Lawyers for Aetna and Cigna argue that ERISA, a 1974 federal law that gives the federal government exclusive authority to regulate employee benefit plans, would prohibit law suits in state courts. They appealed to the U.S. Court of Appeals for the 5th Circuit. The courtruled that suits could be filed in state courts, reasoning that since decisions about whether to pay for particular treatments are decisions concerning both insurance and medical practice, insurance companies can be held liable under state laws enforcing health care standards.

In a brief filed with the Supreme Court, Aetna asserts, "The very reason for the HMOs' existence is to maximize the cost-efficiency of the health care services provided to their members ... Cost-efficiency necessarily involves the institution of cost-management policies like the one at issue in this case, which holds certain more expensive prescription medications in reserve and gives more readily accessible medications a chance to work."

Stephanie Kanwit, legal counsel to American Association of Health Plans/Health Insurance Association of America (AAHP/HIAA), said "there is an important legal distinction to be made" about medical care decisions and coverage decisions.

The attorney for Davila and Galad, George Parker Young, said, "How can they say a medical necessity decision is not a medical decision? That's goofy. That's double-speak." In a brief he filed on behalf of Davila and Galad, Young stated, ""the duties imposed on all medical decision-makers by the states. ERISA has 'nothing to say' about medical standards of ordinary care, a topic left entirely to the states."

Oral arguments in the case are expected to be heard early in 2004 with a decision issued by July. We will eagerly await that decision. While insurance company representatives argue that allowing patients to sue in state courts will result in higher premiums, copayments and deductibles, patient advocates argue that many decisions currently being made by insurance companies actually result in more long-term expense and end up saving nothing. Had Davila been allowed the Vioxx originally prescribed and Galad allowed the extra time in the hospital recommended by her surgeon, the long-term costs certainly would have been lower.

Resources:

Lane, Charles. Court to Hear Insurance Case. The Washington Post. November 4, 2003.

Salganik, M. William. "Justices to rule on the right to sue HMO." SunSpot.net, The Baltimore Sun. November 4, 2003.

Health Care Marketplace | Supreme Court Agrees To Decide Whether People Have Right To Sue Health Plans That Deny Care Recommended by Doctors. kaisernetwork.org. November 4, 2003.
The United States Supreme Court Will Decide.
The issues involved are familiar to many of us. We've followed one of them before when we've discussed insurance companies limiting how many doses of triptans they'll cover. Some of us have also had the experience of having our doctor prescribe a medication only to have our insurance company decree that it's too expensive, and that we must "fail" other, less expensive medications first. Our attending physician expresses his orders by writing us a prescription. We take it to the pharmacy expecting it to be filled as written -- but will it?

Covering the specific medication prescribedwas one of the issues that led to the U.S. Supreme Court's agreeing hear the appeal of two related cases and determine whether patients can sue HMOs for malpractice or other torts in a state court when they refuse to pay for the care recommended by a doctor.

The Cases:

• Aetna Health v. Davila: Juan Davila's doctor wrote him a prescription for Vioxx. However, Aetna required two less expensive medications to be proven ineffective for him before they'd cover the Vioxx. Mr. Davila developed bleeding ulcers from one of the medications he had to try, and required emergency room care for severe internal bleeding. He says he still has complications from the incident.
• Cigna v. Galad et al.: Ruby Galad, who was covered by Cigna HealthCare of Texas, was hospitalized for a hysterectomy. Cigna specified only a one-day hospital stay would be covered. Although her surgeon recommended that she stay longer, the Cigna hospital-discharge nurse did not approve her staying longer. She had to be readmitted several days later because of complications from the hysterectomy.

Davila and Galad sued Aetna and Cigna under a Texas law allowing patients to seek damages for insurance decisions that "affect the Quality of the diagnosis, care, or treatment provided to the plans insureds or enrollees."

Lawyers for Aetna and Cigna argue that ERISA, a 1974 federal law that gives the federal government exclusive authority to regulate employee benefit plans, would prohibit law suits in state courts. They appealed to the U.S. Court of Appeals for the 5th Circuit. The courtruled that suits could be filed in state courts, reasoning that since decisions about whether to pay for particular treatments are decisions concerning both insurance and medical practice, insurance companies can be held liable under state laws enforcing health care standards.

In a brief filed with the Supreme Court, Aetna asserts, "The very reason for the HMOs' existence is to maximize the cost-efficiency of the health care services provided to their members ... Cost-efficiency necessarily involves the institution of cost-management policies like the one at issue in this case, which holds certain more expensive prescription medications in reserve and gives more readily accessible medications a chance to work."

Stephanie Kanwit, legal counsel to American Association of Health Plans/Health Insurance Association of America (AAHP/HIAA), said "there is an important legal distinction to be made" about medical care decisions and coverage decisions.

The attorney for Davila and Galad, George Parker Young, said, "How can they say a medical necessity decision is not a medical decision? That's goofy. That's double-speak." In a brief he filed on behalf of Davila and Galad, Young stated, ""the duties imposed on all medical decision-makers by the states. ERISA has 'nothing to say' about medical standards of ordinary care, a topic left entirely to the states."

Oral arguments in the case are expected to be heard early in 2004 with a decision issued by July. We will eagerly await that decision. While insurance company representatives argue that allowing patients to sue in state courts will result in higher premiums, copayments and deductibles, patient advocates argue that many decisions currently being made by insurance companies actually result in more long-term expense and end up saving nothing. Had Davila been allowed the Vioxx originally prescribed and Galad allowed the extra time in the hospital recommended by her surgeon, the long-term costs certainly would have been lower.

Resources:

Lane, Charles. Court to Hear Insurance Case. The Washington Post. November 4, 2003.

Salganik, M. William. "Justices to rule on the right to sue HMO." SunSpot.net, The Baltimore Sun. November 4, 2003.

Health Care Marketplace | Supreme Court Agrees To Decide Whether People Have Right To Sue Health Plans That Deny Care Recommended by Doctors. kaisernetwork.org. November 4, 2003.