Insurer called out for bogus "not medically necessary" claim denial

When an insurance company decides it doesn't want to pay a claim, it is required by law in most states to give a legitimate reason. If it doesn't give a reasonable explanation or doesn't have a legitimate reason, the insurance company can be liable for bad faith. 

One way insurance companies try to boost profits and get around these requirements is to claim that certain treatments are "not medically necessary." An extreme example aired on The Today Show several years ago: 

Here are some of the facts from the show:

• A man and his sister had the same health insurance company, United Healthcare

• The man and his sister had same life-threatening disease, cystic fibrosis, and the same mutation of that disease

• The man and his sister had the same doctor

• The doctor for the man and his sister wrote an identical letter to United Healthcare asking it to pay for a new, life-saving medication for cystic fibrosis, which costs $25,000/month

United Healthcare approved the claim for the sister, but denied the claim for the brother as "not medically necessary." For over a year, the man's health declined, while his sister's improved. As The Today Show prepared to air a segment on the man's fight for life against United Healthcare, the show's producers called to ask for a comment by United Healthcare. The response? A complete change in position, so they wouldn't look quite as bad on national television.

Kevin and Katie Dwyer's case shows just how arbitrary insurance companies can be. But most folks aren't going to receive help from The Today Show to make their own insurance company do the right thing. In a country where we are required by law to buy car and health insurance or get hit with severe economic penalties, it is unfair for insurance companies to get away so often with such arbitrary conduct.

Here at the Chaney Law Firm, we see "not medically necessary" claim denials all the time. It is a method insurance companies use to boost profits, often at the expense of their own policyholders. As one example, one car insurance company denied payments for computerized radiographic mensuration analysis (CRMA) services by a medical doctor in Texarkana based upon reports by two chiropractors in Washington State and Georgia. The medical doctor objected to the Washington and Georgia chiropractic boards and the insurance company, but the insurance company wouldn't change its position. In another example from one of our cases, a carrier has a general business practice of capping claim payouts on PIP claims by setting an arbitrary number of treatments for their own policyholders. If the number of treatments exceeds the arbitrary number, the claim is sent to a physician reviewer (most likely in another state) to provide a sham report for the carrier to rely on in underpaying the claim.

These example reflect a common practice; in many instances, the insurance company will attach a boilerplate report from a medical reviewer who lives many states away and who does not know the standards of practice here at home. Another example is when insurance companies hire the same experts here in Arkansas repeatedly because they always issue the same boilerplate reports in favor of the insurance company. You can read more about these so-called "medical reviewers" and their predictable opinions here.

If you've been told by an insurance company your treatment is not medically necessary, you have rights. You can appeal the insurance company's decision, take your case to the Insurance Commissioner for help, or hire an attorney to help you with the process. We provide free consultations and would be happy to see if we can help. 

Chaney Firm verdict upheld on appeal

I argued a case to the Eighth Circuit Court of Appeals in January (here's an earlier report on the argument). We tried the case in January 2012 in federal court in Hot Springs and received a nice verdict for our client. We're pleased that the Eighth Circuit agreed with us and allowed the verdict to stand. The Court's decision is posted here.

One issue on appeal dealt with the routine use of medical visual aids based upon CRMA, digitized x-rays, and proton density MRIs. The defense claimed that the visual aids were misleading and were used as actual evidence, rather than illustrations to help doctors testify about injuries to specific body parts. The Court held that the medical illustrations were not misleading because a doctor testified that they were accurate and helped him teach the jury about complex medical issues.

The other main issue on appeal was a procedural question concerning two professional defense witnesses that were excluded; the defense tried to call these new experts at the last minute because its original expert's theory of degeneration did not hold up under cross-examination. When the trial judge didn't let them call new witnesses, they changed tactics and tried to claim they needed the new experts because they were surprised by what our client's doctors had to say. The trial judge saw through this charade. On appeal, the defense claimed that our client's doctors should have been excluded. The appeals court rejected the surprise argument, as the defense had all the relevant medical records, had received a summary of the anticipated testimony, and never took depositions of the doctors.

We're pleased to have obtained a good result for a deserving client. 

Cite: Bradshaw v. FFE Trans. Servs., Inc., 715 F.3d 1104 (8th Cir. June 3, 2013).

What is CRMA?

CRMA stands for Computerized Radiographic Mensuration Analysis.

This is a test that Analyzes the angles and distances between bones in the spine us a Computer and X-rays, which are a certain type of Radiograph. The purpose of the test is to accurately assess damage to the spine. 

Mensuration has been used by doctors for nearly 100 years to figure out when a patient’s spinal bones are misaligned due to injury, aging, or congenital defects. Mensuration compares a patient’s spine to a normal spine. Until the last 20 years or so, doctors performed mensuration by hand using x-rays, a light box, and a grease pencil.

In the last 20 years, more doctors and clinics started using x-ray machines that take x-rays digitally, rather than with film (just like digital cameras have replaced film cameras). With the computing power available today, it also made sense for doctors to use computers to perform mensuration calculations. The result is a more accurate and repeatable mensuration report. For this reason, CRMA is generally accepted in evidence-based medicine as a reliable method of assessing spine damage.

A mensuration report looks like this: 

CRMA can also be used to assess legal impairment. Courts in Arkansas follow the American Medical Association’s Guides to Permanent Impairment (the AMA Guides). The AMA Guides contain specific guidelines that tell when, and how much, a person is permanently impaired when their spine has been injured. So, a CRMA report like the one below shows that the patient has a 25–28% whole person impairment rating at two spinal levels:

CRMA gives doctors, lawyers, judges, and juries alike objective medical information proving permanent impairment. It is a valuable new tool that helps injury victims obtain full and fair justice for their injuries. 

Hilary, Nathan, and oral argument – It's not what you think

Ordinarily, the mention of husband and wife in the same sentence as the term "oral argument" isn't a good thing. However, Hilary and Nathan recently showed there is an exception to this rule!

Nathan argued a big truck collision case before the U.S. Court of Appeals for the Eighth Circuit on January 16 in St. Louis. In this case, the Chaney Law Firm is defending a jury verdict it won for a client in federal district court in Hot Springs in January 2012. One issue on appeal dealt with the routine use of medical visual aids based upon digitized x-rays and proton density MRIs. The other main issue on appeal was a procedural question concerning two professional defense witnesses that were excluded; the defense tried to call these new experts at the last minute because its original expert's theory of degeneration did not hold up under cross-examination. You can listen to Nathan's argument here.

Hilary argued a social security disability case before the Eighth Circuit on February 14 in Kansas City. Hilary's case involved issues of whether the Administrative Law Judge (ALJ) gave the proper amount of weight to all the medical evidence. Hilary argued that the ALJ erred by only considering just five pages of medical records from just one doctor who said he didn't have enough information to fill out the disability paperwork, when hundreds of other pages of records from four other doctors showed our firm's client is truly disabled. Even the one doctor the ALJ relied upon prescribed narcotics on at least 13 different occasions, yet the ALJ found our client's pain was not severe enough to preclude work. This case truly shows why many people need legal representation when dealing with the Social Security Administration. You can listen to Hilary's argument here.

It is truly a high honor and great privilege to argue before the U.S. Court of Appeals for the Eighth Circuit. Below are pictures from the courtrooms in St. Louis and Kansas City. Which has the better view?

Nathan to speak at Arkansas Trial Lawyers annual meeting

I will be presenting a CLE at the Annual Meeting of the Arkansas Trial Lawyers Association in Eureka Springs, which is from May 2–4, 2012. My topic will be "Presenting Objective Evidence of Injury." It will touch on topics like digitized x-rays, CRMA, the American Medical Association's Guides to the Evaulation of Permanent Impairment, and tips for dealing with junk science invented by insurance companies in the 1990's as a cover to deny claims. Hope to see you there!