Taking Care of Business

Senate Fails to Close Loopholes Protecting Insurers

Two days after that visit, Thrope collapsed on the street outside his home and died at age 18. But HIP, having successfully raised both the ERISA statute and New York State public-health law in its defense, was not required to address the Thropes' malpractice charges in court. Instead, the company settled its case by covering $5000 of Thrope's medical expenses, which a lawyer representing HIP says were not at first presented to the company.

HIP spokesperson Loretta Creggett adds that "the case was managed by participating physicians. This was not a case where the HMO intruded on the management of patient care." Cases against Thrope's individual health care providers are still pending.

Michele Swersey: Beginning in 1989, Swersey, a Long Island mother of two, experienced what court papers describe as "throbbing, chronic, and agonizing pelvic pain." Her gynecologist eventually traced it to varicose veins in her pelvis. According to her complaint, Swersey's primary care physician referred her to the Pain Alleviation Center, writing that "without this treatment she would need to be managed with addicting pain medication," and providing Swersey's insurer, Empire Blue Cross/Blue Shield, with documentation for the referral. Swersey's complaint says she called Empire to make sure her pain treatment would be covered. The company covered her claims, but then abruptly stopped. According to the complaint, Empire defended its denial on the grounds that Swersey's pain management was not medically necessary.

Illustration: Jordin Isip

Swersey sued to make Empire cover her unpaid medical bills, which come to at least $6550. The case, filed in 1997, is still pending. But, whatever the outcome, Swersey was limited by ERISA. If not for the statute, she could have sued for breach of contract, which could have resulted in her collecting damages. As it is, the amount that she might receive is dwarfed by her legal bills, a phenomenon that discourages many patients who would otherwise sue. Regarding all cases involving Empire, spokesperson Deborah Bohren says, "Our legal obligation is to ensure that we only pay claims that are medically necessary."

David Ockert: In 1989, Ockert, a psychologist, was injured in a car accident that left him in need of physical therapy and help getting around and completing daily tasks. According to his legal complaint, his insurer, Empire Blue Cross and Blue Shield, refused to consistently cover his medical bills. "Sometimes they paid, sometimes they didn't," his attorney, Joseph Slater, told the Voice. Ockert alleges that Empire's carelessness, recklessness, and negligence left him intermittently bedridden.

As a result, the psychologist is suing his HMO for $5 million in damages and another $500,000 on behalf of his wife, who claimed she had lost his companionship. Slater says that Empire's lawyers have raised ERISA as one of their defenses. But the suit, which was filed in 1996, is now on hold pending the Ockerts' separate divorce case.

Research: Joshua Gaynor

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