A second opinion, isn’t that
something we’ve come to seek almost automatically if the doctor gives us bad
news on an important piece of our human machinery? Well, those who go to HMO’s were not certain they could do so
until this right was reinforced in late June of this year. This issue was decided in a hotly contested
five to four United States Supreme Court ruling which overrules the HMO
treatment plans that deny second opinions, or what are also referred to as
“independent reviews.”
California is one of 42 states that
permits people under the care of HMO’s to get second opinions. Until very recently, HMO’s were rejecting
payment and rejecting treatment when an individual went for a second opinion,
and it showed that a surgery or other significant care was needed.
All of this stemmed out of the case
of Deborah Moran who took advantage of a law in Illinois similar to the one in
California which permits second opinions, as she forced her HMO to reimburse
her for a $95,000.00 operation. Ms.
Moran had a debilitating and rare nerve problem, and her HMO had recommended
physical therapy. After three years of
physical therapy and other meager attempts by her primary care physician to
treat the pain in her arm, Ms. Moran decided she wanted a second opinion. Her HMO would not pay for this independent
review, so Ms. Moran paid for the second opinion, paid for the surgery, and
then sued and won her case.
As expected, managed care is not
happy about this decision. A spokesman
for an association that represents HMO’s stated that this decision will
increase the complexity of health insurance coverage. What nonsense!
California’s law is identical to the one in Illinois, and supporters of
this United States Supreme Court ruling indicate that since California passed
this law, people who were previously denied appropriate care are getting that
appropriate care in greater numbers than before. The hope here is that HMO’s will think twice before denying a
creative surgical suggestion or denying the seeking of a second opinion.
This decision was reached with one
of those five to four votes which scare the heck out of me. If one Justice who voted with the majority
passes away and is replaced by a judge with a different view, then this very
fortunate decision is subject to being overturned. This decision split the way most of the five-four decisions
split, with Justices Breyer, Bader- Ginsburg, Souter, Day-O’Connor, and Stevens
in the majority, and Rehnquist, Scalia, Thomas, and Kennedy on the other
side. The key to this case was Justice
Sandra Day-O’Connor who, more often than not, votes with the conservative
Justices; however, she comes over to the other side on certain issues such as
this.
I hope the future finds Justice O’Connor
joining with the majority in other important cases with similar impact. As far as I am concerned, this should be a
nine-zero decision, but as long as it is five-four, I would suggest that you
hurry out and get your second opinion and your surgery if necessary before the
make-up of the Court changes.
Dr. Charles J. Unger is a criminal defense attorney in the
Glendale law firm of Flanagan, Booth & Unger, and a therapist at the
Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological
issues. He can be reached at charlie@charlieunger.com