Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Weight loss surgery is triggering a new type of litigation-and malpractice has nothing to do with it. At issue is whether or not insurance companies should have to pay for the increasingly popular weight loss procedure known as gastric bypass surgery, which has exploded from 36,700 operations in 2000 to 140,640 in 2004. Last year, a half-dozen courts nationwide heard cases where plaintiffs sued insurance companies for refusing to pay for obesity surgeries. The most recent case, currently pending before the South Dakota Supreme Court, involves a woman’s appeal from a lower court’s decision upholding an insurance company’s right to deny coverage for weight loss surgery. Cain v. Fortis Insur. Co., No. 02-1083. Lawyers observing these cases say what’s driving patients to court-and what could lead to more suits in the future-is a recent move by several insurance companies to drop gastric bypass surgery from their coverage list. Insurers regard the procedure as risky and overused. But lawyers assert that these fears are unfounded and contradict a widely held medical view that gastric bypass surgery can be a life-saving tool for the morbidly obese. “[Doctors] are starting to recognize the possibility of using gastric bypass surgery not for cosmetic purposes, but really for people who have life-threatening morbid obesity . . . that’s why people are suing the insurance companies-to try to get the coverage,” said Chicago attorney Gary Mullin of Chicago’s Law Office of Gerald Mullin, who in November successfully sued an insurance company in Illinois for refusing to pay for his client’s weight-loss surgery. Moirav Shaltiel v. Fortis Insurance Co., No. 3-C-8348 (N.D. Ill.). Mullin believes that, eventually, given the rising problem of obesity in this country-23 million Americans are considered obese-all insurance companies will be required to pay for weight-loss surgery. Doubts about safety But many insurance companies say they aren’t yet convinced the surgery is safe or effective, arguing they can’t afford to pay for what they deem a risky and expensive procedure. The cost is about $35,000, and the mortality rate is 1%, according to the American Society for Bariatric Surgery. By comparison, the mortality rate for hip replacement surgery is 0.3%, and for brain surgery 10.7%, according to the Journal of the American Medical Association. “I don’t think people really appreciate how serious the complications can be and how high the mortality rate is from these procedures,” said Barry Schwartz, vice president for care and network management at Blue Cross Blue Shield of Florida, which, as of Jan. 1, stopped coverage of gastric bypass surgery. “I think with all of the problems associated with [weight-loss surgery] and the high cost, I think that it’s not reasonable for our company to continue covering it,” he added. Schwartz said insurance companies also tend to view obesity as a lifestyle choice, not an illness. “I don’t think that there is anyone who would argue that if someone follows a diet and exercises that they will lose weight,” Schwartz said. “It may be difficult for some people, but the basic fact is that if they diet and exercise, they’ll lose.” Similar concerns have been expressed at insurance companies nationwide. Blue Cross Blue Shield of Nebraska no longer covers weight-loss surgery. CIGNA Corp. has stopped coverage in four states, but still allows self-funded group plans the option of buying coverage as an add-on. And Louisville, Ky.-based Humana Inc. has halted coverage in several states. “The medical literature and scientific evidence as to the safety and effectiveness of these types of surgery are mixed,” said Humana spokeswoman Mary Sellers. “While some surgeries are successful, others have not been.” Sellers added that more studies need to be done on how to improve the outcomes of weight-loss surgery and to show the long-term impact of these procedures. Currently, there is no federal law that mandates insurance coverage of weight-loss surgery for the obese. Lawyers say that 44 states now cover at least some type of gastric bypass procedure under Medicaid. But only four states-Georgia, Indiana, Maryland and Virginia-have laws requiring private health plans to provide minimum coverage for treatments, including surgery, for the morbidly obese. In the past year, Medicare removed language from its policy that designated obesity as a nonillness, leading to what some lawyers believe will be future insurance coverage for things like bariatric surgery. Gastric bypass surgery, commonly referred to as stomach stapling, promotes weight loss by restricting food intake and, in some operations, interrupting the digestive process. It is used on people who are 100 pounds or more overweight. In the commonly used stapling procedure, the surgeon staples across the top portion of the stomach to create a small pouch, which is connected to the small intestine. This reduces the amount of food eaten as well as decreases absorption of the food and calories consumed. Lifestyle v. illness Attorneys representing the obese are fighting over a key issue that is facing the government, courts and insurance companies: Is obesity a lifestyle choice or an illness? This issue was raised in a recent Illinois lawsuit in which a federal judge ruled that an insurance company is required to pay for a woman’s gastric bypass surgery despite a provision in the policy that excluded coverage for treatment related to “lifestyle concerns.” According to Mullin, the plaintiff’s lawyer in Shaltiel, the case involved a 255-pound woman who suffered from hypertension and sleep apnea because of her weight. Doctors advised her to get a gastric bypass operation. Her insurance company did not preapprove the operation, so she paid for it herself. After the procedure, she sued for reimbursement and won. The judge ruled that the operation was medically necessary and should have been covered, despite the policy’s provision that obesity is a lifestyle concern and is not covered. “I think it came down to the question of policy interpretation,” Mullin said. “The judge didn’t say that the insurance company’s decision was unreasonable. He just said that mine was reasonable, too.” Fortis’ attorney, William Beatty of Chicago’s Johnson & Bell, said Fortis is considering an appeal. He declined further comment. Attorney N. Dean Nasser Jr., a solo practitioner based in Sioux Falls, S.D., is hoping for a similar result in South Dakota, where he recently argued Cain, the weight-loss surgery reimbursement case before the state Supreme Court. Nasser argued before the state high court in November that his client’s life was in danger. He said the woman, who was 5 feet 8 inches tall and weighed more than 300 pounds, needed gastric bypass surgery to treat her high blood pressure, degenerative joint disease and gynecological problems. “I made my decision that I’d die on the table trying rather than live the way I was going to live,” asserted Jannelle Cain, the plaintiff. Cain had the surgery in November 2001, but Fortis Insurance Co. denied coverage for the procedure, which cost just above $20,000. Cain sued but lost when a state circuit judge ruled that South Dakota law allows standard insurance policies to exclude surgical treatment of obesity. Nasser said Cain then appealed to the state Supreme Court, arguing that Fortis failed to prove that the surgery was primarily for weight loss. He said the procedure also cured numerous health problems, and should have been covered by the policy. “What’s tragic in all this is it’s the patient who seems to be the least important factor,” Nasser asserted. “And that’s what we’ve tried to do with this lawsuit-give the patient importance in this and not just the [insurance] industry.” Fortis’ lawyer, Kristine Kreiter O’Connell of Woods Fuller Schwartz & Smith in Sioux Falls, declined comment. The case is still pending. In another recent ruling, the 7th U.S. Circuit Court of Appeals upheld a health care provider’s decision to reject a participant’s request to cover his gastric bypass surgery. Manny v. Central States, No. 04-1797. For treating obesity, the procedure was listed as a “cosmetic exclusion” under the plan, but the participant argued that it should be covered to treat his obesity-related medical conditions. The court rejected the argument, finding that the trustees acted reasonably in excluding coverage for gastric bypass operations, whether or not performed for cosmetic reasons. California attorney Walter Lindstrom knows firsthand how hard it is to get an insurance company to cover weight-loss surgery. Ten years ago, when he had his gastric bypass operation, he wrote what he called his first “nasty lawyer letter” to Blue Cross Blue Shield of California for refusing to pay for it. The insurance company ended up paying for it, he said. And the experience prompted him to form the Obesity Law and Advocacy Center in San Diego, which exclusively counsels obese patients. Lindstrom said that in the last year, he handled 500 complaints from clients, most of them involving patients whose insurance companies had either denied preapproval for their weight-loss surgery, or refused to reimburse them for it after the operation. He said that, usually, patients avoid litigation because it is costly and time-consuming. Insurance companies do a good job at bullying patients and keeping them out of court, he claimed. Lindstrom added that in the last decade, he’s tried about a dozen cases where he has sued insurance companies over coverage. All cases settled. Thirty clients seek coverage Currently, Lindstrom is handling a complaint on behalf of roughly 30 plaintiffs in Illinois who claim their insurance company refuses to reimburse them for weight-loss operations. He said the clients have been denied coverage because they have failed to document 12 months of medically supervised weight loss. “If the company does not see the light, we are going to be compelled to litigate,” Lindstrom said. Meanwhile, Lindstrom said he is “very concerned” about the number of insurance companies who are dropping gastric bypass surgery coverage. He is calling on lawyers to reach out and help the morbidly obese, and help convince insurance companies and the government that obesity is an illness, not a lifestyle choice. “A lawyer will look at these cases and say, ‘Why don’t you just go on a diet.’ And lawyers really do have to guard against that,” Lindstrom said. “It’s absolutely imperative that lawyers have to recognize that people are suffering from a disease that is devastating . . . and consider putting on their most empathetic ear that they have ever had,” he said.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.