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The maker of a dental diagnostic device and holistic dentists who use it to prescribe radical therapies that involve pulling teeth to treat nondental conditions extracted a win in the latest round in their battle against insurer Aetna Inc. U.S. District Judge Marcia S. Krieger in Denver dismissed the Hartford, Conn.-based insurance titan’s countersuit against Cavitat Medical Technologies Inc. of Emory, Texas, and Cavitat owner and founder Robert J. Jones. Cavitat Medical Technologies Inc. v. Aetna Inc., No. 04-1849 (D. Colo.). Cavitat’s lawsuit, filed in Colorado federal court, accused Aetna of “publishing and disseminating” injurious falsehoods, unlawful restraint of trade and racketeering over a 2002 policy bulletin that denied insurance coverage for claims based on procedures that employ its diagnostic Cavitat system. In its countersuit, Aetna sought among other things to recoup 429 claims it said it had paid to 17 dentists nationwide. Aetna alleged that the dentists fraudulently recoded disapproved procedures as approved on Cavitat’s advice. Krieger ruled that Aetna lacked standing to bring a Colorado Consumer Protection Act claim because the alleged deceptive trade practices that caused Aetna injury were not the same practices that Aetna contends affected the public. The judge also dismissed Aetna’s fraud and civil conspiracy claims, ruling that Aetna’s argument that Cavitat advised others to make misrepresentations on claims is insufficient to state a claim for direct fraud. And the judge ruled that Aetna’s allegations were not detailed enough to plead the fraud component of the civil conspiracy claim. Cynthia B. Michener, an Aetna spokeswoman, said that the company disagrees with the court’s decision and maintains that its counterclaim was firmly grounded in the law and facts. “However, the evidence we collected for our counterclaim will be very useful in defending Aetna against Cavitat’s only two remaining claims,” Michener said, adding that Krieger’s decision “leaves us free to pursue fraud claims against the dentists who use the Cavitat technology.” Andrew B. Reid of the Walter L. Gerash Law Firm in Denver, who represents Cavitat, said that Aetna’s defense highlights “an amazing situation of mudslinging between crusaders of two different philosophies of medical practice”: traditional practitioners and those pioneering alternative practices. “We allege in our litigation that Aetna is just trying to avoid or delay a huge potential liability . . . meanwhile depriving their members of the proven medical benefits of this device.” The case is scheduled for trial in June on Cavitat’s two surviving claims against Aetna: disparagement and tortious interference with prospective business relationship or contract. From MS to cancer Cavitat system users employ the device to locate “cavitations,” or areas of bone loss or deterioration in their patients’ jaws, which, they believe, are made particularly susceptible by prior conventional amalgam fillings and root canal work. Such practitioners claim that “neuralgia-inducing cavitational osteonecrosis,” or NICO, diagnosed in these areas can cause an array of medical complaints such as chronic fatigue, multiple sclerosis, Lou Gehrig’s disease and cancer. Evelyn F. Ireland, executive director of the National Association of Dental Plans, a Dallas-based nonprofit trade association that represents the dental benefits industry, said that the high profile of the Aetna case has prompted other insurers to review whether they have paid similar claims, but that the numbers are comparatively small. Although Aetna named 17 practitioners in its counterclaim-less than one in every 10,000 practicing dentists-Ireland also pointed out that “Cavitat is just the brand name for a single supplier of this type of device and not the only supplier out there.” David J. Wilzig, a solo practitioner in Los Angeles, has settled three individual dental malpractice cases in Orange County, Calif., against two Huntington Beach dentists who used the Cavitat system to diagnose and treat patients. Wilzig, who said his main practice involves business litigation between doctors, said that he began taking these cases because he was outraged at what he sees as a “selective predatory practice.” “This isn’t medicine, it’s out-and-out fraud! And it’s especially upsetting because it picks on people with chronic illnesses,” Wilzig said. He has four actions pending in Orange County and plans to file lawsuits in Los Angeles and San Diego.

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