Late Breaking News:  ACA vows to appeal the appeal

ACA loses Trigon appeal

Could set precedent to shield insurance companies

The American Chiropractic Association (ACA) suffered a severe defeat on May 6 when the U.S. Fourth Circuit Court of Appeals ruled against its appeal in the Trigon health care case and affirmed the lower court's dismissal of all complaints against Trigon.

The case, which along with the ACA's lawsuit against the Centers for Medicare and Medicaid Services has cost the chiropractic profession an estimated $5-7 million, was first filed on August 18, 2000.

Alleging eight counts of racketeering, extortion, mail fraud and antitrust violations and other state and federal law violations, the complaint initially named Blue Cross & Blue Shield of America in addition to Trigon but the ACA voluntarily dismissed that company as a defendant.

On July 19, 2001, a District Court dismissed two of the counts and, on April 25, 2003, the other counts were dropped when U.S. Federal Judge James P. Jones ruled in a summary judgment that there were "no genuine issues of material fact remaining for trial." The opinion explained that summary judgment is a tool designed for "weeding out claims and defenses that have no factual basis."

The ACA immediately appealed the case, despite reservations expressed by numerous organizations, including the Chiropractic Coalition.

According to the 34‑page Appellate Court decision, the original District Court judge "was not persuaded by (the) American Chiropractic (Association's) argument" and "found that (the) American Chiropractic (Association) had failed to adduce sufficient evidence of a conspiracy between Trigon and the medical associations who appointed individuals to the MCAP to survive summary judgment."

The Appellate Court agreed, adding that the ACA "paints with too broad a brush, and would, in effect, undercut much of the rationale of the intracorporate immunity doctrine by focusing on form over substance."

The judge also noted that "the American Chiropractic (Association) has failed to show that either the reimbursement policies or the Low Back Guideline was the result of an antitrust conspiracy. They have pointed to no evidence that Trigon conspired with any entity in forming its policies. In fact, the only evidence in the record is that all of the actions in dispute were taken unilaterally by Trigon employees. In the face of Trigon's affidavits that it acted unilaterally, (the) American Chiropractic (Association) needed more to create a genuine issue of material fact."

In one part of the decision, the court pointed out that the ACA had, in fact, agreed to the provisions of it was now arguing in court.

In its appeal, the ACA asserted that the District Court abused its discretion by limiting the scope of discoverable materials to those created after January 1, 1996, making it impossible for the ACA to pursue "key avenues of investigation."

The Court of Appeals noted: "Unfortunately for (the) American Chiropractic (Association) this limitation was imposed not by judicial fiat, but by the mutual agreement of the parties. The record shows that (the) American Chiropractic (Association) and Trigon agreed, in writing, to limit discovery to events arising after January 1, 1996 unless, in good faith, a more expansive time period was necessary. (The) American Chiropractic (Association) failed to contact Trigon to discuss expanding the time period and did not mention the limiting nature of the agreement to the district court until June 18, 2002, a mere ten days before the close of discovery."