A second opinion, isn’t that something we’ve come to seek almost automatically if the doctor gives us bad news on an important piece of our human machinery? Well, those who go to HMO’s were not certain they could do so until this right was reinforced in late June of this year. This issue was decided in a hotly contested five to four United States Supreme Court ruling which overrules the HMO treatment plans that deny second opinions, or what are also referred to as “independent reviews.”
California is one of 42 states that permits people under the care of HMO’s to get second opinions. Until very recently, HMO’s were rejecting payment and rejecting treatment when an individual went for a second opinion, and it showed that a surgery or other significant care was needed.
All of this stemmed out of the case of Deborah Moran who took advantage of a law in Illinois similar to the one in California which permits second opinions, as she forced her HMO to reimburse her for a $95,000.00 operation. Ms. Moran had a debilitating and rare nerve problem, and her HMO had recommended physical therapy. After three years of physical therapy and other meager attempts by her primary care physician to treat the pain in her arm, Ms. Moran decided she wanted a second opinion. Her HMO would not pay for this independent review, so Ms. Moran paid for the second opinion, paid for the surgery, and then sued and won her case.
As expected, managed care is not happy about this decision. A spokesman for an association that represents HMO’s stated that this decision will increase the complexity of health insurance coverage. What nonsense! California’s law is identical to the one in Illinois, and supporters of this United States Supreme Court ruling indicate that since California passed this law, people who were previously denied appropriate care are getting that appropriate care in greater numbers than before. The hope here is that HMO’s will think twice before denying a creative surgical suggestion or denying the seeking of a second opinion.
This decision was reached with one of those five to four votes which scare the heck out of me. If one Justice who voted with the majority passes away and is replaced by a judge with a different view, then this very fortunate decision is subject to being overturned. This decision split the way most of the five-four decisions split, with Justices Breyer, Bader- Ginsburg, Souter, Day-O’Connor, and Stevens in the majority, and Rehnquist, Scalia, Thomas, and Kennedy on the other side. The key to this case was Justice Sandra Day-O’Connor who, more often than not, votes with the conservative Justices; however, she comes over to the other side on certain issues such as this.
I hope the future finds Justice O’Connor joining with the majority in other important cases with similar impact. As far as I am concerned, this should be a nine-zero decision, but as long as it is five-four, I would suggest that you hurry out and get your second opinion and your surgery if necessary before the make-up of the Court changes.
Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at firstname.lastname@example.org