December 2004

Supreme Court rejects ACA's Trigon case

The U.S. Supreme Court has refused to grant the American Chiropractic Association's request to review its case against Trigon Healthcare. The decision, announced Nov. 8, effectively puts an end to the ACA's lengthy ‑‑ and costly ‑‑ attempt to prove that Trigon engaged in illegal discrimination against chiropractors.

The suit, filed in 2000, accused Trigon 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.

Although initially supported by many organizations and individual doctors, the case quickly became muddled with weak arguments and lack of proof. 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."

Other organizations, including the Chiropractic Coalition (a cooperative effort of the World Chiropractic Alliance, the International Chiropractors Association and the Federation of Straight Chiropractors and Organizations) urged the ACA to drop the battle rather than pump additional money into the losing fight. It recommended seeking legislative redress for the Medicare problems, and finding a better way to combat insurance discrimination.

The ACA refused to heed these recommendations and took the case to the Appellate court, but was no more successful there. 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."

By that point, the ACA admitted that the costs for fighting the Trigon case and the unrelated lawsuit against Medicare, were soaring. The most recent estimates from the ACA put the total cost for the legal efforts at between $5‑7 million, most of it going to Chicago‑based law firm McAndrews, Held & Malloy, whose founder and senior partner is attorney George McAndrews, brother of Jerome McAndrews, DC, the ACA's national spokesperson. The ACA has never revealed the exact amount of donations and expenses.

Again, other chiropractic organizations and leaders urged the ACA to stop the financial bleeding by giving up the case. In March 2003, the Coalition issued a statement in which all three organizations spoke against continuing to spend money ‑‑ most of which was donated by doctors of chiropractic to the ACA's National Chiropractic Legal Action Fund (NCLAF) ‑‑ on the lawsuit.

The Coalition statement argued: "A lawsuit is an extremely time‑consuming and expensive tactic. The National Chiropractic Legal Action Fund (NCLAF), formed to fund the ACA lawsuit, has reportedly already cost the profession more than $5 million, according the ACA reports... It is the opinion of the Chiropractic Coalition that this money could be better spent on funding subluxation‑based research, conducting public relations, engaging in national and international legislative efforts, and other much needed programs to protect and promote the chiropractic profession. Therefore, the Chiropractic Coalition can no longer encourage doctors to provide additional contributions to the NCLAF."

The ACA again ignored the advice and went so far as to take the case to the U.S. Supreme Court, a move that could have added more than a million dollars to the already staggering legal bill being footed by the chiropractic profession.

"With the Supreme Court decision, it should be clear to the ACA that the case was a failure," said Terry A. Rondberg, DC, president of the World Chiropractic Alliance. "It's deplorable that this exercise in futility has cost the profession so many millions of dollars. If the ACA had been willing to listen to the three other chiropractic organizations and thousands of doctors, it could have saved time, money and a great deal of hardship. Now, we have this case on the books and we'll have to deal with the repercussions of that for years, possibly decades to come."