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| JustHealth's Representative Litigation Project | | Print | |
| Written by John Metz | ||||||||||||||
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Some Litigation In Which JustHealth Was A Party Or Intervenor
1. Timmis et al v. Kaiser et al
Audrey Timmis, Linda Guidino, Winston Yarborough, Shirley Milligan, Mary Cargile, Charles Phillips, M.D. and California Consumer Health Care Council v. Kaiser Permanente et al Superior Court of California, County of Alameda Case N0. 833971-7
Mark P. Robinson, Jr., Bar No. 054426 Sharon J. Arkin, Bar No. 154858 ROBINSON, CALCAGNIE & ROBINSON 620 Newport Center Drive, 7th Floor Newport Beach, CA 92660 (949) 720-1288, Fax 720-1292
Arthur Bryant, State Bar No. 208365 TRIAL LAWYERS FOR PUBLIC JUSTICE One Kaiser Plaza, Suite 275 Oakland, California 94612-3684 (510) 622-8150, Fax 622-8155
Attorneys for Plaintiffs Challenging Kaiser’s practice of forcing its patients to split pills in a futile attempt to obtain the correct prescribed doses – done solely to increase Kaiser’s profits
2. California Consumer Health Care Council, Inc. et al v California Department of Managed Health Care, et al
California Consumer Health Care Council, Inc., Gerry Goldshine, Rachel Goldshine, Jeff La Marca, Antony La Marca, Shirley Milligan, Martha K. Reitz, Carl Slawski, Victoria Travis, and Kelley Turner Petitioners/Plaintiffs, vs. California Department of Managed Health Care, and Daniel Zingale, Director, Respondents/Defendants
Petition for Writ of Mandate, and Complaint for Declaratory Relief and Mandatory Injunction
Harvey S. Frey #202595 552 12th St. Santa Monica, CA 90402 (310) 394-6342 Attorney for Plaintiffs
Challenging DMHC’s failure to comply with the laws requiring them to protect the interests of health care consumers
3. CITIZENS FOR HEALTH, et al. v. TOMMY G. THOMPSON, Secretary U.S. Department of Health and Human Services
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITIZENS FOR HEALTH, et al. ) ) Plaintiffs, ) No. 03-2267 (MAM) ) v. ) ) TOMMY G. THOMPSON, Secretary ) U.S. Department of Health and Human ) Services ) ) Defendant ) )
POWERS PYLES SUTTER & VERVILLE, PC James C. Pyles, Esq. Twelfth Floor 1875 Eye Street, N.W. Washington, D.C. 20006-5409 Phone: (202) 466-6550 Fax: (202) 785-1756 Counsel for Plaintiffs
Challenging the HIPAA Privacy Regulation, implemented in 2003 that, for all important purposes, eliminates medical privacy in the U.S.
4. Consumer Federation of America, California Consumer Health Care Council and United Policyholders v Maine Bureau of Insurance et al
A Victory For Insurance Consumers and Open Government: Maine Insurance Bureau Ordered to Release Confidential Report on UNUM-Provident Merger In 1999, the Maine Bureau of Insurance (MBI) commissioned the former accountants for Enron Corp., Arthur Andersen, to prepare a Report to be used as evidence in MBI’s decision on the application for merger of UNUM Life Insurance Co. and Provident Co., Inc. into the World’s largest private disability insurer – controlling a major share of the U.S. market.
MBI approved the merger - but refused to disclose to the public potentially vital information contained in The Report.
On March 8, 2004, in a victory for insurance consumers and open government, after years of relentless efforts on behalf of consumers, the Consumer Federation of America, California Consumer Health Care Council and United Policyholders obtained a verdict that the document be disclosed. The consumer groups thank the lawyers who worked so tirelessly on bringing this matter to a proper conclusion, especially lead attorney, Sloan J. Zarkin, of Anderson Kill & Olick, and local Maine counsel, Robert Morris who obtained a Court Order requiring the Maine Bureau of Insurance to disclose The Report in its entirety1.
5. In the Matter of Withdrawal of Policy Form Approval for: UNUM LIFE INSURANCE COMPANY OF AMERICA et al
Prohibiting the use of “discretionary” clauses in disability insurance policies. 6. CALIFORNIA CONSUMER HEALTH CARE COUNCIL v. AETNA HEALTH OF CALIFORNIA, INC. et al
CALIFORNIA CONSUMER HEALTH CARE COUNCIL, as a private attorney general on behalf of members of the general public, v. AETNA HEALTH OF CALIFORNIA, INC. f/k/a AETNA U.S. HEALTHCARE OF CALIFORNIA, INC.; AETNA U.S. HEALTHCARE, INC.; AETNA, INC.; AETNA HEALTH PLANS OF CALIFORNIA, INC.; and DOES 1 through 300, Inclusive,
John D. Rowell, Esq. SBN 77971 CHEONG, DENOVE, ROWELL & BENNETT 10100 Santa Monica Boulevard, Suite 2460 Los Angeles, California 90067-4100 Telephone: (310) 277-4857 Facsimile: (310) 277-5254 Attorneys for Plaintiff
Challenging Aetna’s unconscionable and unenforceable arbitration provisions and its conduct relating to those provisions
7. CALIFORNIA CONSUMER HEALTH CARE COUNCIL v. KAISER FOUNDATION HEALTH PLAN, INC. et al
CALIFORNIA CONSUMER HEALTH CARE COUNCIL, suing on behalf of the general public, Plaintiff,
vs.
KAISER FOUNDATION HEALTH PLAN, INC; THE PERMANENTE MEDICAL GROUP, INC.; KAISER FOUNDATION HOSPITALS; AND DOES ONE THROUGH TEN, INCLUSIVE, Defendants.
COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF UNDER BUSINESS AND PROFESSIONS CODE § 17200 AND 17500
BAUM & BLAKE DAVID B. BAUM State Bar 28506 MARTIN BLAKE State Bar 98021 2 Boston Ship Plaza San Francisco CA 94111 Telephone: 415/956-5544 Facsimile: 415/956-5547
LAW OFFICE OF GERALD CLAUSEN GERALD CLAUSEN State Bar 99483 One Maritime Plaza, Suite 1600 San Francisco, CA 94111 Telephone: 415/391-4475 Facsimile: 415/986-3498
Challenging Kaiser’s improper disclosure and use of patients’ personal health information
Some Litigation in which JustHealth Provided Input and/or Impetus
1. Input and impetus for Broker fee litigation – 1999/2000 California broker fee litigation and Broker Fee Pamphlet Subcommittee > N.Y. Attorney General Elliot Spitzer’s 2004 litigation led to $100 billion + drop in market value of industry within one week of filing against the country’s largest brokers and a few major insurers, and structural changes in the way the industry does business. It also triggered action by the California Insurance Commissioner > see Title 10 of the California Code of Regulations, Sections 2189.1 – 2189.8. These revelations have spawned numerous other actions across the country.
2. Input and impetus for Disability insurance litigation
A. 2000
state of california
WHEREAS, the Insurance Commissioner of the State of California has reason to believe that the above Respondent, GUARANTEE LIFE INSURANCE COMPANY (“Respondent”), has been engaged or is engaging in this State in the unfair methods of competition or unfair or deceptive acts or practices set forth in the STATEMENT OF CHARGES contained herein, each falling within Section 790 et seq. of the California Insurance Code and/or Section 2695.1 et seq. of Title 10, California Code of Regulations (“regulations”);
B. 2003
The State of California ex rel. Linda Nee and John Metz Civil Appeal No. B183487 to Appellate Court and Supreme Court (S145225) The work of JustHealth provided input and impetus for many actions all across the U.S.
3. Input and impetus for hospital overcharging litigation JustHealth has been involved with assisting patients with excessive hospital charges since the mid-1990s. The Medical Board of California informs people who go to it for assistance with these problems that these are matters “which would fall within the jurisdiction of JustHealth (aka California Consumer Health Care Council)”. Beginning in or about 2000, we encouraged litigation to deal with these problems when it became apparent that specific hospitals or hospital groups were systematically engaging in deceptive billing practices and they would not willingly correct them. Since then there have been many actions filed to deal with this misconduct.
4. California Department of Insurance’s Settlement with UnumProvident2: John Metz and JustHealth provided substantial input to CDoI, regarding UnumProvident’s wrongful conduct, which assisted CDoI in performing its regulatory duties towards this entire segment of the insurance industry. The Commissioner noted that many of the provisions of this agreement will eventually apply to all other disability insurers operating in the California market. “Today’s action goes beyond UnumProvident,” he said. “California’s disability insurers now have a new standard, one that will provide a better sense of security for policyholders, which is what disability insurance is really all about.”
5. Regulations, towards which JustHealth and John Metz provided substantial input, have found their way into numerous Appellate Court decisions for the benefit of consumers and providers, including health care consumers and providers. A few examples include: A. Spray, Gould & Bowers v. Associated International Ins. Co. (1999) 71 Cal.App.4th 1260SPRAY, GOULD & BOWERS, Plaintiff and Appellant, v. ASSOCIATED INTERNATIONAL INSURANCE COMPANY, Defendant and Respondent. (Superior Court of Los Angeles County, No. BC157387, David P. Yaffe, Judge.) (Opinion by Petersen, J., fn* with Klein, P. J., and Croskey, J., concurring.) {Page 71 Cal.App.4th 1261} OPINION MAJORITY: PETERSEN, J. fn * —Plaintiff Spray, Gould & Bowers is a law firm (SG&B) which appeals the trial court's summary judgment in favor of the defendant Associated International Insurance Company (AIIC), based on the contract limitations period stated in the subject insurance policy. We hold that an insurer's direct violation of duly promulgated administrative regulations issued by the California Insurance Commissioner, requiring the insurer to notify a claimant insured of time limits pertaining to the claim, may provide the basis of an estoppel against the insurer's assertion of a contract limitations defense. The trial court's summary judgment is reversed and the matter is remanded for further proceedings.
C. Doheny Park Terrace HOA v. Truck Insurance Exchange (2005) 132 Cal.App.4th 1076
DOHENY PARK TERRACE HOMEOWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. TRUCK INSURANCE EXCHANGE, Defendants and Respondents. B174036 California Court of Appeal, Second District, Third Division September 19, 2005 APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. Nos. BC294198 & BC262246, Carl J. West, Judge. Order of dismissal reversed. Page 1082 OPINION CROSKEY, J. Plaintiff Doheny Park Terrace Homeowners Association (Doheny Park), appeals from the trial court’s order dismissing its first amended complaint. The defendant, Truck Insurance Exchange (Truck),[1] had demurred to Doheny Park’s pleading and the trial court sustained that demurrer without leave to amend. The trial court concluded that Doheny Park had not filed its action within the two year contractual limitation period specified in Truck’s policy, or during the revival period established by Code of Civil Procedure, section 340.9. In addition, Doheny Park had failed to plead facts sufficient to establish a basis for application of the doctrine of equitable estoppel precluding Truck from asserting a limitations defense. We have reviewed the record, including Doheny Park’s first amended complaint, and concur with the trial court that Doheny Park did not timely file its action, either within the original two-year period or during the one-year statutory revivor. We disagree, however, that it failed to plead sufficient facts to raise the bar of equitable estoppel. We will, therefore, reverse and remand for further proceedings. 1 Except for the listing of individual policyholders by name. EVA NEUFELD, Plaintiff and Appellant, v. BALBOA INSURANCE COMPANY, Defendant and Respondent. G022801 California Court of Appeal, Fourth District, Third Division November 2, 2000 OPINION SILLS, P. J.— Eva Neufeld made a claim in April 1995 to Balboa Insurance Company for the losses incurred when the roof of her ski lodge collapsed. Balboa denied the claim in June 1995 on the ground that the cause of the losses, the weight of snow on the roof, was not a named peril under Balboa's named peril policy. (The policy provided for narrower coverage than usual because it had been procured for Neufeld by her lender.) Neufeld requested reconsideration on the theory that the cause of the loss was vandalism, which was a named peril. Balboa rejected that contention in October 1995. Neufeld filed this lawsuit in March 1997 and Balboa successfully moved for summary judgment on the policy's contractual one-year statute of limitations (often called the "one-year suit provision"). Neufeld Page 761 then appealed, arguing that a copy of the policy sent to her ex-husband did not contain the standard one-year suit provision.[1] In the interim, the Court of Appeal decided Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260 [84 Cal.Rptr.2d 552] (Spray, Gould), which, in combination with the regulations of the Insurance Commissioner on which the opinion relies, has pretty much vitiated the one-year suit provision as a defense in first party insurance cases. Specifically, Spray, Gould held that an insurer could be estopped from raising the one-year suit provision as a defense if it had not complied with regulations issued by the California Insurance Commission in 1992 requiring every insurer to disclose to a first party claimant all time limits that might apply to the claim presented by the claimant. (See id. at pp. 1264 [citing Cal. Reg. Notice Register 92, No. 52 (Dec. 15, 1992)], 1265, fn. 3 [quoting Cal. Code Regs., tit. 10, § 2695.4, subd. (a)].)[2] The basic theory of the Spray, Gould decision is that "after-the-fact" administrative sanctions do nothing to "rectify" the wrong the disclosure regulation was "designed to prevent," and it is therefore up to the courts, "through their equitable powers," to "require compliance" with the regulation. (Spray, Gould, supra, 71 Cal.App.4th at p. 1271.) Otherwise, insurers would have a de facto incentive to disregard the regulation. (Ibid.) Scofflaw insurers would gain a "competitive edge" on those who complied. (Id. at p. 1274.) In the present case we have found nothing in the record to suggest that Balboa had notified Neufeld of the one-year suit provision, and there is a declaration from Neufeld's attorney that none of his correspondence with the company mentioned the one-year suit provision. We therefore requested supplemental briefing on the question of whether any violation of the disclosure regulation might estop Balboa from raising the one-year suit Page 762 provision defense. (See Gov. Code, § 68081 [reviewing court may "render a decision ... based upon an issue which was not proposed or briefed by any party" if it affords "the parties an opportunity to present their views on the matter through supplemental briefing"].) Balboa's response has been to meet Spray, Gould somewhat head on. We say "somewhat" because the company does not argue that Spray, Gould was unsoundly reasoned as a matter of its internal logic. Balboa makes no attempt, for example, to argue that as a matter of first principle the violation of a regulation requiring disclosure of time limits should not estop an insurer from asserting those time limits as an affirmative defense to a suit on the claim. Nor does it suggest that the time limit disclosure regulation is beyond the Commissioner's authority. The company doesn't even argue that the regulation is unsound public policy. Rather, Balboa asserts that the Spray, Gould decision simply contravenes a higher court decision, Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 (Moradi-Shalal) [250 Cal.Rptr. 116]. Its fallback position is that even if Spray, Gould is consistent with Moradi-Shalal, it would be unfair to apply it retroactively. Moradi-Shalal held that no private cause of action could be maintained under the Unfair Practices Act. (Ins. Code, § 790 et seq.) Balboa's theory is that under Moradi-Shalal, estoppel cannot be premised on a violation of the Unfair Practices Act, which Balboa appears to believe subsumes the disclosure regulation.[3] The theory is untenable. The essential problem is that it assumes too broad a view of Moradi-Shalal. Moradi-Shalal demonstrated that as a matter of statutory analysis, it is wrong to conclude that the Unfair Practices Act was intended to include private causes of action. (See Moradi-Shalal, supra, 46 Cal.3d at pp. 297-301.) Indeed, the very language of the Unfair Practices Act indicates that a private cause of action is not within the act's purview: Subdivision (h), which introduces the litany of things that insurers shouldn't do, is framed in terms of many instances, not just a single case, thus signaling that the statute does not contemplate a private cause of action for a single instance of malfeasance: "The following are hereby defined as unfair methods of competition ... in the business of insurance. [¶] ... [¶] (h) Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices." (Ins. Code, § 790.03, italics added.) To the degree that the decision rested on sound policy independent of what the Legislature intended, Moradi-Shalal was not directed at the Unfair Page 763 Practices Act generally—much less a regulation promulgated pursuant to its authority—but at what the court majority perceived to be the extremely bad idea, initially set forth in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880 [153 Cal.Rptr. 842], of allowing third parties to sue insurers for not settling fast enough when liability was reasonably clear (cf. Ins. Code, § 790.03, subd. (h) (5)). (See Moradi-Shalal, supra, 46 Cal.3d at pp. 301-304). Much of the opinion is devoted to the analytical anomalies and adverse social and economic consequences of so-called Royal Globe actions (e.g., coercing inflated settlements) where a second lawsuit " 'hovers over most litigation involving an insured defendant.' " (id. at p. 302, quoting Allen, Insurance Bad Faith Law: The Need for Legislative Intervention (1982) 13 Pacific L.J. 833, 851.) But it does not follow that precluding someone who doesn't have a contract with an insurance company from suing that company because the company doesn't make a policy limits offer quickly enough (see Moradi-Shalal, supra, 46 Cal.3d at p. 295 [noting that Justice Richardson's dissent in Royal Globe Ins. Co. pointed out that "the duty to settle runs to the insured "]) means that an insurer cannot be estopped in a particular case for ignoring a directive of the Insurance Commissioner to notify all first party claimants of the one-year suit provision. In contrast with the language of the Unfair Practices Act, the suit provision, which is also derived from a statute (Ins. Code, § 2071) is focused on judicial, as distinct from administrative, processes. If there is to be any judicial recognition of the commissioner's time disclosure regulation, it would naturally be in the context of an estoppel to assert the one-year suit provision. Spray, Gould itself addressed the problem of whether it was compatible with Moradi-Shalal by quoting language from pages 304 through 305 of the high court's decision, which clearly contemplates that there will be some judicial consequences for violation of the Unfair Practices Act, albeit not as drastic as allowing an independent cause of action: "Moreover, apart from administrative remedies, the courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, and (as to the insured) either breach of contract or breach of the implied covenant of good faith and fair dealing." (Moradi-Shalal, supra, 46 Cal.3d at pp. 304-305.) This language appeared as part of a demonstration that the world would not end if the Supreme Court overruled Royal Globe Ins. Co. v. Superior Court, supra, 23 Cal.3d 880, precisely because there were "other remedies" in court, as well as administratively, for violation of the Unfair Practices Act than a private right of action. Spray, Gould called the lesser remedies alluded to in Moradi-Shalal "consequences short of an independent private right of action." (Spray, Page 764 Gould, supra, 71 Cal.App.4th at p. 1272.) Balboa does not tell us why estoppel should not be one of those remedies, which, if equity means anything, it surely is. Without belaboring the points made in Spray, Gould, it is enough to remark the sheer unseemliness of an insurer's being able to profit by flouting the regulations of the Insurance Commissioner in a context where it does not incur any "new or expanded" liability. (See id. at pp. 1270, fn. 10, 1271, 1274.) It is one thing not to allow a private cause of action; it is another not to allow an insurer to gain the benefit of a claimant's ignorance that a regulation is supposed to dispel. The other half of Balboa's argument is that because Spray, Gould is a "new development" in the law, it should not be applied retroactively. Again the logic is flawed. Strictly speaking, Spray, Gould did not announce any new "rule" of law—the court simply put two and two together and divined what was already inherent in the nature of applicable legal principles in light of the commissioner's regulations. Those regulations have been effective since 1993 (before the Northridge earthquake, which gave rise to Spray, Gould), and the equitable principle of estoppel, which forms the heart of the court's decision, has been around seemingly forever.[4] In light of the regulation, we could just as easily reach the result we do today without any reference to the Spray, Gould. A corollary to Balboa's newness argument is a reliance argument. The company says that "[f]ollowing Moradi-Shalal, it was not foreseeable that violations of section 790.03 would be used against insurers in civil actions, either as affirmative claims or in the context of the remedy of equitable estoppel." Again, the error in this formulation is that it rests on too much wishful thinking as regards Moradi-Shalal. In the section of Moradi-Shalal explaining the "other remedies" that remained after private cause of actions were eliminated, the Moradi-Shalal court went out of its way to specifically warn insurers not to violate the Unfair Practices Act: "We caution, however, that our decision is not an invitation to the insurance industry to commit the unfair practices proscribed by the Insurance Code." (Moradi-Shalal, supra, 46 Cal.3d at p. 304.) "If you want to know the law and nothing else," wrote Oliver Wendall Holmes in his famous essay, The Path of the Law, "you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict ...." (See Golding, The Nature of Law: Readings in Legal Philosophy (Random House 1966) p. 178, reprinting Page 765 Holmes, The Path of the Law (1897) 10 Harv. L.Rev. 457.) In light of the warning given by Chief Justice Lucas writing for the court in Moradi-Shalal, no hypothetical "bad insurer"—consulting an oracle for accurate prophecies of what the courts would do—could have reasonably relied on Moradi-Shalal for permission to violate the Insurance Commissioner's regulation. That warning was part of an apologetic discourse by the court explaining that lesser remedies, including judicial remedies, would be available for violation of the Unfair Practices Act. Any reasonable insurer could have anticipated that no court would countenance the flouting of time limit disclosure regulations promulgated by the Insurance Commissioner in a context where the insurer was seeking the benefit of its own wrong as an affirmative defense in litigation. Obviously then, it was error to grant the summary judgment based on the one-year suit provision given the present record. We express no opinion as to the nuances of any further proceedings regarding the statute of limitations is | ||||||||||||||