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For more than four years, Mark Galanty has fought a lonely battle against his insurer for refusing to honor a disability policy after he came down with AIDS. It has been a losing fight too, with both the trial and appellate courts holding that his policy was negated by the fact he had tested positive for HIV before the purchase date. But now, with the dispute in the hands of the California Supreme Court, the former court reporter suddenly has powerful allies coming out of the woodwork. And they’re submitting amicus curiae briefs claiming that a pro-insurance ruling could set health policy back by years and even be used against healthy people who might not be sick a day in their lives. Specifically, they fear insurers will take advantage of medical progress by denying coverage to individuals who show as much as a genetic disposition for ailments as varied as breast cancer, colon cancer, multiple sclerosis, diabetes and heart disease. “Women who may never even get [breast cancer] will become targets of discrimination,” attorneys at the Los Angeles-based California Women’s Law Center wrote the court before submitting a brief in late March. “Women with a significant family history of breast cancer will be forced to weigh the benefits of genetic testing against the risk of discrimination in employment or . . . in obtaining and securing insurance benefits.” Protection & Advocacy Inc., an L.A. disability rights group, pointed out that an anti-plaintiff ruling in Galanty v. The Paul Revere Life Insurance Co., S073678, could create “an incentive for individuals to remain ignorant of their health status.” “Preventive medicine as we know it,” staff attorney M. Michelle Malebranche wrote in the group’s amicus brief, “will become a faint memory because the new thrust of our health care system will be ‘What you don’t know won’t hurt you.’” But an attorney for the Washington, D.C.-based American Council of Life Insurance, which filed the lone defense amicus, accused his opposing amici of distorting the issue. “The thrust of this lawsuit isn’t about [genetic testing],” said Norman Tolle, a partner at Uniondale, N.Y.’s Rivkin, Radler & Kremer. “The thrust here is that we have situations where applicants for disability insurance apply for that coverage with the knowledge that they have a condition that will likely lead to a disability in the future.” After the California Supreme Court granted review Nov. 4, Galanty’s allies began to grow. As of Tuesday’s deadline, 15 groups — including the Bar Association of San Francisco, the Women’s Cancer Resource Center and the American Civil Liberties Union of Southern California — had submitted pro-plaintiff amicus briefs with the court. “Once [we] looked at the issues and the magnitude of the case, everybody said, ‘Wait a minute, this could be me. It could be someone I love,’” Sharmila Lodhia, staff attorney for the California Women’s Law Center, said this week. Even Insurance Commissioner Chuck Quackenbush weighed in on Galanty’s side Monday, arguing that a pro-insurance ruling would essentially void the state’s 48-year-old incontestability statute, which prohibits insurers from contesting claims that arise more than two years after a policy is acquired. Plaintiff’s co-counsel Jon Davidson, supervising attorney in the L.A. office of New York’s Lambda Legal Defense and Education Fund, welcomed the broad perspective brought by the amici. “It helps in both the court’s full consideration of the public policy issues,” he said, “and the possible repercussions of the decision.”ADAPTING TO THE TIMESSurprisingly, Galanty had made few ripples until Aug. 17, when the Second District Court of Appeal held that the insurance policy’s exclusion for pre-existing illnesses nullified Galanty’s disability claim for AIDS. The court agreed with the insurer that the disease had been “manifest” in the form of HIV before he bought the policy. The policy’s incontestability clause, the court ruled, cannot create coverage where none existed in the first place.

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