Subject: Life-and-Death Medical Cases Drag in Courts Date: Published: 2/17/93 (114 lines) Source: Wall Street Journal. Copyright Dow Jones & Co. Inc. Law: Life-and-Death Medical Cases Drag in Courts ---- By Edward Felsenthal Staff Reporter of The Wall Street Journal Sheri Dexter was dead before her lawsuit seeking an expensive leukemia treatment could be resolved -- an unsurprising result, lawyers say, in a court system that is proving too sluggish to deal effectively with such disputes. Hundreds of cases such as Ms. Dexter's have sprung up around the country in recent years, as patients' needs for expensive care run flush into insurers' cost-cutting efforts. The lawsuits are over an array of costly and often unproven treatments, from bone-marrow and organ transplants to new kinds of drugs. The cases trouble health specialists, who say the court system -- with its inveterate delays and lengthy appeals -- isn't capable of ruling as quickly as these life-and-death disputes require. And they say the ethical and policy decisions involved should be settled by physicians and patients, by scientists, or by legislators -- by almost anyone, in short, other than lawyers and judges. In Ms. Dexter's suit, as in many of these cases, no one really emerged a winner. Citing the "irreparable harm" Ms. Dexter would suffer without the treatment -- a $170,000 bone-marrow transplant -- a lower court had issued a pretrial ruling requiring Arizona's Medicaid program to fund it. But by the time Ms. Dexter received the treatment, her condition had worsened. Ms. Dexter's lawyer believes her client might have lived if litigation hadn't delayed the procedure. And although the Medicaid program ultimately won the case on appeal, it hardly mattered at that point: The transplant already had been administered and paid for. "There is no way to recover the money," said Logan Johnston, a lawyer for Arizona Medicaid. "It's not like a corporate dispute where there's an ongoing entity afterward and you can say, `Well, a mistake was made and, therefore, you ought to pay us back.'" Cases such as Ms. Dexter's often become moot because, in issuing pretrial rulings, judges can weigh the defendant's arguments against the potential harm to the plaintiff from delaying a ruling until trial. When that harm is death, defendants need an unusually strong case to defeat the ruling. "The courts really are the place of last resort" for these issues, said Arthur Caplan, a bioethicist at the University of Minnesota. The judges "don't want these cases," he said. "The doctors hate to go there. The patients find it frustrating." Insurers complain that judges in these lawsuits routinely dispense more sympathy than justice, ignoring explicit limitations in insurance contracts and requiring coverage for treatments that the contracts never meant to include. "Courts have really sidestepped reality and put themselves in an Alice-in-Wonderland world of words meaning what they want them to mean," said Mary Ader, associate general counsel for the Blue Cross & Blue Shield Association in Chicago. In a controversial 1990 decision, for example, a New York state trial judge required a health insurer, Empire Blue Cross & Blue Shield, to pay for a bone-marrow transplant for a man who was infected with the HIV virus, which causes AIDS. Empire claimed the transplant was experimental, having been used for AIDS patients only a handful of times. The AIDS patient's health insurance, like most private plans, excluded coverage "for services which are deemed experimental or investigative." But in a written opinion, Judge Elliott Wilk suggested that the treatment wasn't experimental, writing that although the procedure was new for HIV patients, it had had some success in treating other illnesses, such as breast cancer. The HIV patient, however, had become too ill to receive the treatment and died a year after the judge's ruling. Until the 1970s, resolving such questions wasn't typically part of the job description for trial judges. Then emerged a series of prominent cases asking judges to decide whether the families of certain comatose patients could terminate their life-support. Legal specialists contend that those issues, many them now settled, were appropriately the province of judges because they involved traditional questions of law, such as individual rights, consent and the state's interest in protecting life. The current slate of medical-treatment cases, however, are brought mostly by plaintiffs who seek to receive, rather than turn down, costly treatments. As a result, the cases often focus on scientific debates about the efficacy of particular therapies, debates that fall outside of most judges' expertise. "Long ago, the people who sit on the bench and decide the cases dropped out of organic chemistry," said Prof. Caplan. "They aren't especially comfortable" with scientific issues. And the scientists whom the judges rely upon as expert witnesses in these cases often "aren't really the most faithful allies of the truth," said Uwe Reinhardt, a Princeton University health economist. "If you hold enough green stuff in front of a scientist, the truth gets deflected." Defenders of judicial involvement in the treatment cases counter that most of the suits are contract-interpretation disputes of the kind judges routinely tackle. "I don't decide whether the insurance company ought to be insuring" a particular treatment, Justice Wilk said in an interview. "My determination is made on the contract." Some health-care reform advocates are pushing for legislation that would establish national guidelines on whether particular treatments are standard or experimental. Such guidelines, they hope, would make coverage decisions more predictable, perhaps curbing the number of decisions that are challenged in court. Meanwhile, courts are likely to remain final arbiters. "My first choice would be to see these matters resolved by good communication between doctors and patients," Prof. Caplan said. But, he said, "I would prefer court resolutions to a system that just said, `Sit outside the Blue Cross door and beg.'" [This article is made available here by Dow Jones Co. for the personal and non-commercial use of callers to this bbs, in the hope that it will be of some help to those who are suffering from the disease and others who are seeking to help them.]