A lawsuit filed in the Superior Court of the State of Washington has fired another volley in the legal war against the Mercy Guidelines.

On Feb. 14, 1996, chiropractic patient Lucyna Kalinowska filed a complaint against State Farm Mutual Insurance Company after it refused to pay for part of the chiropractic care she needed after an automobile accident.

Kalinowska argued that the company failed to act in good faith when it based its decision on the Mercy Conference Guidelines and the opinions of John Triano, D.C., of the Texas Back Institute.

Dr. Triano is a contributor to the Mercy Guidelines and the Texas Back Institute works with insurance companies to review chiropractic claims.

At the heart of the argument was the use of surface EMG testing, a diagnostic method widely used throughout the country. Although its effectiveness has been well-documented, it was judged "investigational or experimental" by the Mercy Conference Guidelines and therefore not approved by them.

When first released, Mercy Guideline supporters such as Triano, attempted to placate disgruntled doctors by assuring them the document would not be used by insurance companies to deny otherwise acceptable claims.

Yet, even before the printed document was mailed to field doctors, reports were received that insurance denial forms already included the soon-to-be-dreaded phrase "Based on the Mercy Conference Guidelines, we cannot pay ..."

In pleading her case, Kalinowska brought to the court's attention the fact that "John Triano, D.C. and the Texas Back Institute are not licensed to practice chiropractic in the State of Washington. Moreover ... John Triano, D.C., on or about April 22, 1983, surrendered to the Colorado State Board of Chiropractic Examiners his license to practice chiropractic upon his admission that he had engaged in unprofessional conduct in violation of Colorado law."

State Farm noted, in a letter to the treating doctor, that it was refusing to reimburse for the use of the EMG since it was not approved by the Mercy Conference. Because of that, "it is not payable under the terms of the insurance policy as it is not essential in achieving maximum medical improvement."

State Farm gave no indication that any other evidence or basis was used in its determination. However, as Kalinowska pointed out in her complaint, the insurance policy never stated that the Mercy Guidelines were to be the sole criteria for making payment determinations or that the claims would be reviewed by doctors who were involved in the creation of those Guidelines and could not therefore be expected to be unbiased in their application.

To reach their decision, State Farm said it was "guided" by the opinion of Dr. John Triano of the Texas Back Institute, who served on the Mercy commission.

In his "review" of the case -- which was done without his having seen or talked to the patient or the treating chiropractor -- Triano showed clearly how difficult it is for any doctor to refute the Mercy findings.

"If the provider can supply new scientific information published in a refereed and indexed journal that can be rated using the definition system in the Mercy Center Guidelines to show high quality evidence justifying an altered rating, the case could be reconsidered," he explained in a letter dated May 18, 1995 to State Farm (emphasis added).

No information was supplied to indicate how much Dr. Triano or the Texas Back Institute were paid by State Farm for his "review."

The plaintiff's attorney, speaking on condition of confidentiality, said that he felt such abuse of the chiropractic profession by Mercy Guideline proponents could be curtailed, if not halted altogether, if more such lawsuits were filed.

He noted that insurance companies like State Farm would be reluctant to use either the controversial document, or reviewers like the Texas Back Institute and John Triano, if they knew their actions would be fought in court.

The Washington case is not the only courtroom battle being waged around the country to break Mercy's stranglehold.

In Florida, Innovative Diagnostics, Inc., manufacturer of EMG diagnostic equipment, filed a lawsuit against State Farm in Oct, 1995.

The complaint charged State Farm with conspiring with several chiropractors for financial gain to deny proper chiropractic claims. Named as co-defendants in the case were the chiropractors who performed paper reviews for State Farm, Todd E. Reiter, D.C., Joseph Costello, D.C., and David J. Bennett, D.C. Also named was Medical Technology Consultants, Inc.

Innovative Diagnostics was represented in the action by attorney Philip Chanfrau, Jr.

In the complaint, the company alleges that the defendants worked together to "discourage, limit, and deny proper medical care and attention as well as diagnostic tests to insured in reckless disregard of the rights of the insured and third party beneficiaries."

As in the Washington case, at issue is the insurance carrier's use of paper reviews by chiropractors to form judgements on the medical necessity of certain diagnostic tests and care.

Chanfrau asked the court for declaratory action regarding the use of such paper reviews, which he asserted are clear violations of Florida Statutes.

"It is about time that these entities and individuals be held accountable for their actions against the chiropractic profession and their clear conspiracy for pure financial gain," stated Paul Robinson, president of Innovative Diagnostics.

Yet another case filed against State Farm, ended in a Final Judgment decree by a Florida County Court which found the insurance company was in violation of the state statutes.