Nation's Largest Heath Insurer's Subsidiary Found Guilty of Bad Faith

Friday, March 19, 2010 General News
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PASADENA, Calif., March 18 In a timely verdict coming just days before the crucial health care vote in Washington, a Los Angeles jury found one of the nation's largest health insurers liable for wrongly denying coverage of a life-saving liver transplant -- even though the operation had been recommended by one of its own physician providers.

The case of Ephram Nehme exemplifies the issues embedded in the current national health care debate. President Obama has voiced concern over insurance companies not paying for needed coverage and programs where corporate bureaucrats, not doctors, make medical decisions.

In 2006, doctors told Ephram Nehme, a California grocery store owner and grandfather, he needed a liver transplant to stay alive. Anthem Blue Cross agreed the transplant was medically necessary and authorized it at a California hospital. But the wait was up to two years and Nehme's doctor felt he didn't have that much time. So Nehme used his own money to pay an Indiana facility for his liver transplant. It was a success and his life was saved. It cost Nehme $206,000 and Anthem nothing -- or so they thought. The jury ruled Monday, March 15, that Anthem acted in bad faith and should cover the cost of the out-of-state transplant -- in a sense agreeing with the very arguments being made in Congress in favor of needed health care reform.

On September 9, 2009, President Obama noted that, "More and more Americans pay their premiums, only to discover that their insurance company has dropped their coverage when they get sick, or won't pay the full cost of care. It happens every day." And on October 5, 2009 in front of medical professionals Obama noted, "These men and women here would not be supporting health insurance reform if they really believed that it would lead to government bureaucrats making decisions that are best left to doctors."

Getting an inside look into a health insurer's behavior is rare because most people receive insurance through their employers and have virtually no right to pursue lawsuits and jury trials. Nehme bought his own health insurance and is not subject to these restrictions.

After Nehme followed his Anthem doctor's advice and went to the Clarian Transplant Center in Indianapolis for the transplant, Anthem refused to authorize and reimburse Nehme for the out-of-state operation. "Literally I was dying," Nehme said. After recovering, Nehme sued Anthem for refusing to pay for the transplant.

Nehme's attorney, Scott Glovsky, argues that a key issue was who made the decision, what was the process, and was the process followed.

During discovery, Glovsky uncovered internal records indicating an Anthem Transplant Case Manager had recommended approving the out-of-state liver transplant. She wrote, "Due to the increased wait time in California, and the rapid progression of his disease, I am recommending for this member approval for going OON [out of network] for his liver transplant."

Anthem argued that the Case Manager was a patient advocate and not a decision maker. Anthem's decision maker was Dr. Zeinab Dabbah, an Anthem Medical Director. Dabbah was not a liver specialist and never treated Nehme. According to Glovsky, Dabbah never consulted with Nehme's doctors or any specialists and relied exclusively on minimal medical records when she denied the out-of-state transplant.

According to Glovsky, Anthem never presented a straightforward explanation of their claims review process. Anthem did acknowledge that it is certified by the national, non-profit National Committee for Quality Assurance (NCQA), a standards organization promoting best practice policies and procedures. NCQA's Rule UM 6, Clinical Information, requires that when making a determination of coverage based on medical necessity, the organization obtains relevant clinical information and consults with the treating physician.

During trial, Dr. Dabbah acknowledged that it is a regulation requirement in California that a physician, when reviewing a request for care, get the relevant information that they believe in their best medical judgment is appropriate to make that decision. According to Dabbah, "In every case I have ever reviewed, that's exactly what I did."

The jury found that Anthem's review process resulted in the wrong decision and found further that Anthem breached its contract with Nehme and acted in bad faith.

The decision requires Anthem to pay $206,000 for the transplant operation and pay for Nehme's attorney fees, an amount that could dwarf the $206,000.

"While we disagree with the jury's coverage determination, we are pleased that the jury did not award punitive damages and unanimously concluded that Anthem Blue Cross did not act with any malice toward Nehme," the company said.

When someone's life is on the line, like Nehme's was, an insurance company's behavior becomes critical. According to Glovsky, "The evidence was there for the jury to see that an Anthem employee, Anthem in network doctors and even the Anthem contract supported Nehme's claim that they had to pay for his transplant."

Glovsky will seek to broaden the Jury's verdict under the state's unfair competition law. He will ask Superior Court Judge Kenneth Freeman to order Blue Cross to allow its California members to pursue organ transplants at hospitals nationwide that do business with its parent, Indianapolis-based WellPoint Inc., the nation's largest health insurer.

According to Glovsky, Nehme's case reflects systemic problems faced by thousands of Americans everyday in getting their health insurance companies to authorize proper care. As reported in the L.A. Times, Glovsky said, "The message here is that you can't take people's money, promise to protect them, and then leave them to die in their time of need." Glovsky later commented, "Unfortunately, health insurance companies continue to place profits over people and deny medically necessary care for corporate greed."

Glovsky knows many cases like Nehme's -- all examples of this endemic problem in American society. Glovsky comments regularly on healthcare litigation and policy issues and provides "how to" tips to help consumers get the medical treatment they need from their insurance companies.

Both Glovsky and Nehme are available for interviews.

About Scott Glovsky:

SCOTT C. GLOVSKY is a consumer attorney in California who specializes in insurance bad faith, class action and health-related litigation. He appeared in the film SiCKO and People Magazine, and his cases have been profiled on CNN and the major networks. The Consumer Attorneys' Association of California awarded him its "Street Fighter of the Year Award" in 2008. Glovsky has been named one of Southern California's Super-Lawyers since 2006. Glovsky received his undergraduate degree from the University of California, Berkeley and his J.D. from Cornell Law School. Ephram Nehme was also represented in this case by Jason Adams of Domine Adams.

Contact: Staci Vargas, (415) 225-5258

SOURCE Law Offices of Scott C. Glovsky


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