June 2004

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."

The Court of Appeals affirmed the lower court's dismissal of all complaints and wrote a decision that could be cited as a precedent in any future case alleging conspiracy by an insurer to discriminate against chiropractors.

Although initially supported by a majority of the profession, the weaknesses of the ACA's case soon became evident and the World Chiropractic Alliance (WCA), together with the other founding members of the Chiropractic Coalition ‑‑ the International Chiropractors Association and Federation of Straight Chiropractors and Organizations ‑‑ withdrew its financial support. All three groups continued to support the "spirit" of the lawsuits, agreeing with the ultimate goals if not the methods to achieve them.

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 that 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."

ACA President Donald J. Krippendorf, DC, states in a press release: "While we are obviously disappointed by this decision, we stand firm in our conviction that moving forward with the Trigon lawsuit was the right thing to do for the chiropractic profession." He notes that the ACA is "determining its next course of action," regarding the suit.

The Dr. Krippendorf's statement tries to link the failed Trigon lawsuit to improvements in a new chiropractic benefit in the Federal Employee Health Benefits plan, although he does not explain how the two are connected.

In addition, Krippendorf claims that another "favorable outcome of the Trigon case is the launching of the Blue CCHiP program (Blues/Chiropractic Clinical Healthplan Program), a liaison program that has allowed doctors of chiropractic to become integrated into local Blue Cross Blue Shield medical policymaking committees across the country."

Yet, that plan was initiated in Dec. 2001, and has been implemented in just 18 states. Few practicing DCs have seen any real benefits of the program and many observers feel it was instituted as a public relations ploy by Blue Cross/Blue Shield.

A "Google" Internet search found that the only source of information on the program is the ACA itself. A site search of the Blue Cross Blue Shield website revealed that the company does not make a single reference to the program.

"The fact is, the lawsuit was a failure that probably will do additional harm to the profession since it set a dangerous legal precedent that will make successful lawsuits more difficult in the future," stated WCA President Terry A. Rondberg, DC.

"Although the initial goal ‑‑ to stop anti‑chiropractic discrimination by insurance companies ‑‑ was a just one, the case was apparently very weak and ended up costing millions of dollars," he pointed out. "We hope the ACA will finally decide to cut the profession's losses and stop pursuing this avenue, as the Coalition urged it to do more than a year ago."