ACA Counsel Comments on Court Ruling

Few people have a passion for chiropractic as great as George McAndrews. The son of one DC, the brother of a second and the father to a third, chiropractic - literally and figuratively - runs in his blood. With that passion, Mr. McAndrews has battled for the rights of the chiropractic profession for more than a quarter-century, first as the lead trial counsel in the landmark Wilk vs. the American Medical Association lawsuit of the 1970s and 80s, and now as general counsel for the American Chiropractic Association in its ongoing lawsuit against Trigon and Blue Cross/Blue Shield of Virginia.

While the ACA's suit against Trigon recently suffered a setback at the hands of the U.S. 4th Circuit Court of Appeals (see the accompanying article on the front page of this issue), Mr. McAndrews remains undaunted in his feelings on the merits of the case, and he will continue to use every legal means necessary to see that chiropractors are given equal status in the health care marketplace. Exactly what happened in the Trigon case, what does it mean for chiropractic, where does the profession go from here, and what has the lawsuit achieved for doctors of chiropractic so far? The answers to those questions - and more - can be found by reading Mr. McAndrews' responses to Dynamic Chiropractic's questions on the pages that follow.

Dynamic Chiropractic (DC): Good morning. If you could tell us, in a few words: What has happened in the Trigon suit so far?

George McAndrews (GM): The Fourth Circuit, in our judgment, has inappropriately extended a Supreme Court law about what a "conspiracy" or "combination" is. We believe that by allowing Trigon to get the endorsement of fraudulent and distorted medical back pain guidelines, and to bring in all of the competitive medical societies in Virginia to endorse and therefore add credibility to those guidelines, that it diminished the AHCPR federal guidelines that said patients should be referred to chiropractors. When they reduced that to a non-referral afterthought, using the mail to defraud, it was a combination of illegal actions.

The court took the position - a precedent - that hospitals can use medical doctors, not to review medical doctors, but to distort well-researched federal guidelines with absolutely unresearched parochial guidelines. If they're going to allow that to happen, then almost anything goes where health care is concerned. Simply put, we are totally at odds with what the Fourth Circuit has done.

In addition, the court seemed to indicate that the insurance equality laws could only be enforced by the insurance commissioner. That is somewhat disturbing, because if it means a chiropractor has been cheated out of $40 or 40 percent of what a medical physician would get for the same service, the chiropractor has to go to the insurance commissioner, rather than allowing someone to sue in a class-action suit against the insurance company. The court made it very cumbersome to do that. One thing the court did say, though, is that insurance companies and medical doctors are not immune in the insurance field from a civil racketeering count if there is adequate evidence to support it. The district court had said that the civil racketeering laws did not apply.

So, while we are obviously very disappointed in what the Fourth Circuit did, this is the way the American system works - ultimately, if you can't get relief in the court, you take the results and you go to the legislature for relief. That's why we're by, for and of the people. Ultimately, if the existing laws aren't adequate, the courts spell out in understandable fashion what isn't adequate, and then it's up to (in this case, the chiropractors) to go the legislature. We're not there yet, because we're asking the Fourth Circuit to review what happened. We have 15 pages of briefs that are being filed, and we're asking that if the three-judge panel doesn't review it, that all 15 judges on the Fourth Circuit review it, because we think the precedent is a dangerous one for the implementation of fairness in health care, particularly in insurance for health care.

Obviously, if the Fourth Circuit doesn't review the case, we will then ask the Supreme Court to review it. That's a little bit more difficult, because the Supreme Court gets about 8,000 requests a year, but it only grants about 100. But we do think that the Fourth Circuit has taken such a giant leap away from the Supreme Court precedent, that maybe the Supreme Court will see this as an opportunity to give guidance to all of the circuit courts of appeal and the district courts, that this type of anticompetitive, anti-chiropractic activity will not be tolerated.

DC: What does all this mean to the chiropractic profession? Has this lawsuit really accomplished anything?

GM: Chiropractors really aren't aware that by using litigation, they have served notice that they will represent their patients, and they will not allow the bullies to just get away with anything they want. Chiropractors also lose sight of the fact that the litigation to date has been remarkable.

Obviously, I'm in a biased position on that, but if you go back to the Wilk case, the economic evidence was at the end of the boycott; an added $1 billion a year to the incomes of chiropractors across the land. Some evidence showed that before the boycott, and while the boycott was in full force, a chiropractor's income averaged $25,000 a year. When the boycott ended, the economists agreed the average income went up to $65,000. That's over a 250 percent increase, I believe, in addition to all the other benefits of ending the irrational, unethical boycott on interprofessional relationships. If you look at that $1 billion a year, and it's been 17 years since the injunction that Judge Getzendanner entered, that's $17 billion.

In this particular case, we sued Blue Cross Blue Shield of America and Trigon. Blue Cross Blue Shield reacted very appropriately. They took the position of knowing there had been years of acrimony between the chiropractic profession and the Blue Shield plans. Blue Cross said it would like to help resolve that kind of acrimony, and that if we would drop the lawsuit, Blue Cross Blue Shield would show good faith.

I have to say, they showed their good faith. There was a $9 billion federal employee plan that didn't include chiropractic care for 3 million federal employees and millions of dependants. Within months, chiropractic was the only added provider to the federal employee plan. That cost had to be absorbed by the Blue Shield plans to the tune of $125 million a year going to chiropractors in a plan where they had previously been excluded. Since that time, there have been indications that in addition to the $125 million a year for spinal manipulation, the Blue Shield plans have added up to $125 million for ancillary modalities delivered under the chiropractor's license. If that is correct, you're talking about up to another quarter of a billion dollars a year going into the chiropractor's pocket that didn't exist before.

The information I have received from the field is that as soon as the Trigon lawsuit was filed, other insurance plans that were paying chiropractors 40 percent less or 30 percent less immediately raised the payments to be equal for the ancillary modalities. Now that the insurance companies have been informed that racketeering may be the next charge they have to face, I think their board rooms would be well-advised to limit the input of competitive medical physicians, and let their MBAs decide if chiropractors benefit patients and save money in the long run.

What chiropractors don't point out, even though the AHCPR and the court hinted at it, is that quite often, 20 percent of all patients that go through a medical physician's office have a musculoskeletal problem. The Journal of Bone and Joint Surgery reported that 82 percent of medical doctors fail a simple test on the musculoskeletal system. The only people who are totally educated and trained to take care of that are chiropractors. That information should go, not to medical doctors who don't want insurance monies moving over to chiropractors, to the MBAs at the insurance companies, and they should make an informed judgment based on economics, not based on the perception that if they shifted money from the MDs to the chiropractors, they would either have to take money out of profits, or raise rates to make certain the MDs would keep smiling.

That was the threat: that the 30 cents on the dollar that normally go to MDs for incompetent care, might be switched over to chiropractors, who already get 30 cents on the dollar for muscoloskeletal problems, particularly back care. The court recognized that the chiropractors' payments had gone up 14 percent. That's fine, but I think it should have doubled - from 30 cents on the dollar to 60 cents on the dollar - and our experts indicated that there were deterred referrals because of these fraudulent back pain guidelines, which were set out with no research whatsoever, other than a semantics exercise by somebody with a pen, slashing out the definition of chiropractic manipulation from the guidelines.

Lastly, I think the litigation has informed everyone that chiropractors are proud of representing their patients, that somewhere along the line, these are living, breathing people with pain and suffering. Chiropractors have gotten increased visibility and respect knowing that they're not going to sit by and be wimps. They're going to continue to fight on every single legal front - in the courts, in the legislature, before the insurance commissioners, and before the public. And the litigation helps frame the issues. It's the way the legal system works. If the judicial approach is unsuccessful, it's actually a positive, because it says we need a legislative overhaul - and we now have the fine points that need legislative attention.

I noticed Trigon's parent, Anthem, is giving a $42 million bonus to its chairman for its incredible profitability. Wow! That's twice the amount of money they gave to all of the chiropractors in Virginia, and their patients. Somewhere along the line, that doesn't seem fair. It doesn't seem fair that the purveyor of money should be able to dip into the money intended for health care to the extent that they have record profits and record bonuses, while the patients of chiropractors with pain and suffering suffer.

That's the message that has to come out from this. Injustices come out of the court frequently. In the real sense, it may be that the facts weren't appropriate; maybe the interpretation of the law wasn't appropriate ... but that doesn't mean you sit back and suck your thumb. It means you go to the other sources of relief in our democratic society.

DC: What's next?

GM: On May 20th, we'll file a 15-page petition for rehearing in the Fourth Circuit, accompanied by the same brief, asking that it be circulated to all 15 judges of the Fourth Circuit, telling the court that it has created a slippery slope for the non-application of the antitrust laws, the civil racketeering laws, and the insurance equality laws. If that is unsuccessful, then within 45 days after the Fourth Circuit rules, we will file a petition for certiorari in the Supreme Court. At each stage, the issue will be more and more refined, and at each stage, the public and chiropractic patients will learn more.

I am reminded that the public has become sensitized, and chiropractors should know it. Chief Justice Rehnquist often gets up and leaves some hearings because he suffers from interminable back pain. Rush Limbaugh has major problems because of an addiction to painkillers caused by his back problem. Back problems are the number-one reason for visiting a medical doctor, after respiratory problems, and they're the leading reason for medical discharges from the armed forces in people under age 45.

All of this is being highlighted at the same time it has become apparent that the medical world has failed totally in addressing the problems in which the chiropractors have all these skills at their disposal. It's a question of telling every chiropractor in the land to tell their patients about it and go to their legislators.

DC: Any other comments you'd like to add?

GM: As I mentioned before, I've been informed that other insurance companies, upon seeing our litigation, immediately adjusted their payment schedules so that they wouldn't be targeted. There are a lot of wrongs out there, which I think goes back to the inherent greed of the human species. No MD is going to willingly write a check and hand it to a chiropractor; I might say a chiropractor wouldn't willingly write a check and hand it to a medical doctor. They're in competition. The issue is that it has to be fair competition. The chiropractors have endeared themselves to state legislators over the years; that's how they got the insurance equality laws passed. Now they have to talk to their legislators and say this is unjust, too.

I want to mention something in closing. Look at the progress that has been made on the veteran's affairs bill, and the fact that there are now chiropractors serving the Congress, with offices in the Capitol building. The respect chiropractors are getting is amazing, and part of it is because chiropractors are no longer looked at as whipping boys that will just curl up and go away. Between the chiropractors, their patients, and the friends of chiropractic in the legislatures, chiropractic has become a major influence on health care. This not only points out the benefits of chiropractic, it also reminds the world that the MD, the "major deity," has a glaring gap in education and training, and that you can become a drug addict for back pain, whereas if you had been sent to a chiropractor in the first place, there is at least a possibility, if not a probability, that you wouldn't have needed those drugs, that your pain would have been reduced or eliminated, and your functionality improved because of the chiropractor's skills. That's the message that has to get out. Win, lose or draw in the courts, the message is the same.

DC: Thank you.