Legal Issues

May 2, 2011

Unprecedented Court Ruling for MAC!

Michigan Chiropractors Win Class Status Against Blue Cross and Blue Care Network

Last Friday, in a very favorable ruling, Ingham County Circuit Court Judge Paula Manderfield granted the MAC's motion for "class certification" in our legal actions against Blue Care Network (BCN) and Blue Cross Blue Shield of Michigan (BCBSM). This decision means that the case will move forward as a class action and that damages could be awarded. This is an extremely promising development in these two critical lawsuits.

Under Michigan Court Rule 3.501(A)(1), which governs the certification of class actions, one or more members of a class may sue as representative parties of all members in a class action only if:

The class is so numerous that joinder of all members is impracticable

There are questions of law or fact common to the members of the class that predominate over questions affecting only individual members

The claims of the representative parties are typical of the claims of the class

The representative parties will fairly and adequately assert and protect the interests of the class, and,

The maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice

Judge Manderfield found that the MAC satisfied all of these requirements in both lawsuits.

The Blue Cross Case

In Michigan Association of Chiropractors and Toby A. Mitchell, DC, v. Blue Cross Blue Shield of Michigan, the MAC asserts that our members who are or have been participating providers with BCBSM have been harmed because BCBSM has engaged in a practice of not paying chiropractic providers for covered chiropractic services, while paying other non-chiropractic providers for providing the same services. We further assert that MAC members who are not, and have not been, participating providers have been damaged by being discouraged from entering into provider contracts with BCBSM by these same policies, which we believe to be in violation of not only Michigan law, but also the individual provider contracts themselves and the 1999 Settlement Agreement.

The Blue Care Network Case

In Michigan Association of Chiropractors and Nicholas S. Griffith, DC, v. Blue Care Network of Michigan, the MAC asserts that BCN has engaged in systematic exclusion of DCs from its network, combined with a systematic disapproval of out-of-network chiropractic care. The MAC further asserts that BCN has engaged in discriminatory policies against chiropractors in terms of access to patients by directing patients seeking chiropractic services to treat with non-chiropractic professions, by engaging in an open policy of non-referral to chiropractic providers and by requiring referrals to DCs while not requiring referrals to any other type of health provider. The MAC is also asserting that BCN has further discriminated against DCs by refusing to pay chiropractic providers for covered chiropractic services while paying other medical professionals who have provided the same service, as well as by limiting the number of services it will reimburse when provided by chiropractors while not imposing a similar limitation on other medical professionals providing the same services.

In the coming months, look for important information from the MAC on the lawsuits and class action requirements.

March 30, 2011

Ingham County Circuit Court Hears "Class Action" Arguments!

Last week, Ingham County Circuit Court Judge Paula Manderfield heard arguments on the MAC's petition for class certification in our lawsuits against Blue Cross Blue Shield of Michigan (BCBSM) and Blue Care Network (BCN). In mid-November, the MAC submitted briefs in each lawsuit to determine "class certification" - whether or not the MAC lawsuits will be considered class action lawsuits and eligible for damages.

MAC attorney Rick Gaffin expertly laid out the MAC's arguments on why certification should be granted, and Judge Manderfield is taking the issue under advisement. There is no timetable for her decision. As soon as we hear anything from the court, we will notify you.

The BCBSM and BCN Lawsuits

For several years, Blue Cross Blue Shield of Michigan and Blue Care Network have engaged in conduct that we believe has been discriminatory toward doctors of chiropractic and our patients. Following years of attempted negotiations and the pursuit of required administrative remedies, the MAC Board of Directors directed our attorneys to file the legal actions for damages, and declaratory and injunctive relief against both Blue Care Network and Blue Cross Blue Shield of Michigan.

The case against BCN, Michigan Association of Chiropractors and Nicholas S. Griffith, DC, v. Blue Care Network of Michigan, addresses the following: A limited DC network; the requirement that patients seeking chiropractic care have a primary care physician referral; and, the insurer not paying for all services that are allowed by our current scope of practice in Michigan.

The case against BCBSM, Michigan Association of Chiropractors and Toby A. Mitchell, DC, v. Blue Cross Blue Shield of Michigan, addresses the following: Unlawful policies and procedures as they relate to chiropractic; prior and continued breaches of the provider and PPO contracts; a breach of contract as it relates to the 1999 settlement agreement; the improper interpretation of the scope of chiropractic; the non-payment chiropractic services for which reimbursement should be allowed; and, improper limitations on certain chiropractic services which are currently covered.

In General - Class Action Lawsuits

In a potential class action lawsuit, the plaintiff (the party that initiates the lawsuit) must file a motion requesting certification of the case as a class action. The defendant (any party required to answer the complaint of a plaintiff in a civil lawsuit) then files a brief opposing class certification. The judge then certifies or denies the class.

If the judge denies the class, the cases will continue as individual lawsuits filed by the other plaintiffs (Dr. Griffiths and Dr. Mitchell).

The judge could also certify the class, but only offer prospective damages, rather than retroactive damages. Prospective damages are future damages that can to a moderately sufficient extent or degree be expected to occur. They are usually granted on the basis of the facts pleaded and proved by the plaintiff. When prospective damages are allowed to the injured party, they must be such as are in reasonable contemplation of the parties and capable of being ascertained with a reasonable degree of certainty. Retroactive damages are applied for actions committed in the past.

August 25, 2010

Profile: New MAC Attorneys Michael J. Hodge & Richard A. Gaffin

Michael J. Hodge

Michael J. Hodge has an extensive background in governmental, labor and commercial litigation with lengthy trial experience in state and federal courts and before the Michigan Insurance Bureau and other state administrative tribunals. He also handles election law matters and serves as a commercial litigation mediator.

Mike is a Principal Attorney with Miller, Canfield, Paddock & Stone.

Richard A. Gaffin

Richard A. Gaffin specializes in intellectual property litigation and counseling involving patents, trademarks and copyrights, business tort litigation, product warranty litigation, and civil litigation. In addition to being admitted to practice before the United States Patent and Trademark Office, he has tried patent infringement cases to juries, arbitrated overseas, successfully argued appeals in courts throughout the United States, and was part of the Miller Canfield team involved in representing utilities in disputes with the designers and builders of nuclear power plants in Texas and Washington. Those lawsuits lasted for years and involved damage claims in the billions.

“I pride myself on helping clients achieve their business goals in an effective and cost-efficient manner.”
- Richard A. Gaffin

During his long tenure at Miller Canfield, Rick considers himself a nomad because he has worked with many of his colleagues in almost every one of the firm's offices.

“There is nothing more satisfying than getting calls from my colleagues throughout the firm to help them in their representation of our clients.”

February 3, 2010

MAC Lawsuit Against Blue Cross in Discovery Phase

By: Dr. Don Reno, MAC President

For many years, Blue Cross Blue Shield of Michigan (BCBSM) has engaged in conduct that has been
discriminatory toward doctors of chiropractic and the patients who would seek our care.

Following years of attempted negotiations and the pursuit of required administrative remedies, our Board of Directors directed our Legal Affairs Committee and our attorney to file an all-encompassing “class action” complaint (lawsuit) to address BCBSM’s:

1) Unlawful policies and procedures as they relate to chiropractic
2) Prior and continued breaches of the provider and PPO contracts
3) Breach of contract as it relates to the 1999 settlement agreement
4) Improper interpretation of the scope of chiropractic
5) Non-payment of chiropractic services for which reimbursement should be allowed
6) Improper limitations on certain chiropractic services which are currently covered
7) Damages to each member of the “class of similarly-situated chiropractic physicians in Michigan.

The MAC cannot – and will not – tolerate discriminatory policies or activities from ANY insurance company. We believe that Michigan law is on our side and that we will prevail against these discriminatory Blue Cross activities.

Stay tuned to the MAC Action Report and Journal for more information on this important lawsuit as it develops.

February 2, 2010

MAC Lawsuit Against Blue Care Network in Discovery Phase

For many years, Blue Care Network (BCN) has engaged in conduct that we believe has been highly discriminatory toward doctors of chiropractic and their patients. Under Michigan law, BCN is not allowed to treat one class of providers, say DOs or MDs, differently than DCs. Furthermore, they are obligated to pay for all procedures allowed under a provider’s license at a rate equal to what they pay other provider classes. In our opinion, BCN routinely neglects to observe these anti-discrimination provisions.

Our attorney has filed a complaint (lawsuit) to address Blue Care Network’s history of discrimination against chiropractors. The complaint address the following issues:

· Limited access to chiropractic care by subscribers. BCN accomplishes this by various means, primarily by:

o Limiting the network to a very few DCs.

o Requiring that patients seeking chiropractic care have a primary care physician (PCP) referral. This tactic is very effective in limiting care by doctors of chiropractic by effectively placing chiropractic care “under prescription” of a medical physician.

o No other provider—even specialists—are under PCP prescription, except chiropractors.

· Payment for services that are allowed by our current scope of practice in Michigan.

· Fair reimbursement for chiropractic services.

After exhausting all efforts to resolve these issues in the administrative arena, as required by Michigan law, we are left with this action as our only option to compel BCN to treat chiropractors and their patients in a lawful and fair manner.

It is the position of the MAC that these actions violate the Michigan Insurance Code. In addition to violating the Michigan Insurance Code, we believe that BCN, through these policies and practices, has also breached its contracts with chiropractors in its network. To maximize the complaint’s effectiveness, we have identified a MAC member doctor who has agreed to join the lawsuit.

We are asking the court to enter a judgment declaring that through their discriminatory policies and practices, BCN has breached its contracts with chiropractic physicians. We are asking that damages be awarded.

Look for regular updates on this and other critical legal actions in future editions of the Journal and in our weekly emails.