Trigon on Trial

Are Trigon Blue Cross/Blue Shield's actions the medical profession's latest attempt to keep chiropractic in check - or destroy it altogether? In the publisher's column, George McAndrews, lead attorney for the ACA-led lawsuit against Trigon, et al., presents a convincing outline of the conspiracy.

Undoubtedly, some of you have heard or read, from time to time, comments from those who are hostile either to the Trigon litigation, or to the American Chiropractic Association and/or its leaders, questioning what is going on in the courtroom with the Trigon lawsuit. I read some comments stating that the ACA's attempt to link what was happening in the Trigon case with the Wilk case was misleading. I have to say, I was a little bit disturbed when I saw that.

If you can read the most recent brief [please see www.chiroweb.com/trigon] and not see a total connection between the AMA's effort to wipe you out, and what Trigon and its medical directors are doing (and have been doing), then I'm missing something. As I explain in the brief, the Wilk injunction lopped off the head of the octopus, but the tentacles are still alive and well all over the United States.

Many of the things mentioned in the pages of this brief were not mentioned by Judge Jones at all in his 18-page summary judgment decision. I am perplexed at how he was able to evaluate this case without taking into consideration the historical background and the interconnected links of the identical issues. [For more information on the Trigon lawsuit, please see the following online articles:]

www.chiroweb.com/archives/18/20/01.html
www.chiroweb.com/aca/archives/3_02/02.html
www.chiroweb.com/aca/archives/10_02/02.html
www.chiroweb.com/archives/21/12/18.html

I was making my argument in Abingdon, Va., and the judge asked me the same question three times. He said, "Why do you think they (MDs) don't want to refer, or why would Trigon not want them referring?" I replied, "Economic greed. Seventy percent of back pain dollars go to MDs. They want to prevent the slippage of that excess money from going over to chiropractors, and Trigon is nothing but the agent of the economic competitors, the medical physicians."

He said, "You don't understand my question. Why don't they want to refer? They're trained in school to refer. They refer to everybody." I said, "No, they refer within the medical model, because it's 'I scratch your back, you scratch my back.'"

He said, "You're not understanding me. Why don't they refer?" I responded again: "Because they have been told not to refer to chiropractors, and if MDs don't refer to chiropractors, MDs make more money just by keeping the patients in the medical model, rather than the chiropractic model." He replied: "But Mr. McAndrews, that sounds to me like a cultural discrimination, rather than an economic one. And I understand your point that the medical profession has not sufficiently at all recognized the superior advantages of chiropractic, but again, it sounds more like a cultural or educational deficiency."

In my introductory comments to the Fourth Circuit, I said no other court has ever treated the antitrust laws like substitute civil rights cases. There was clearly no need for the conspiracy, and the proven overt actions in furtherance thereof, if merely the laws of nature or the law of survival of the fittest, were benignly allowed to take place. The reason they had to come together in a conspiracy was because of the way the AHCPR guidelines were written by the federal government. They had to refer, and most of those referrals had to go to chiropractors. They couldn't allow that to stand.

Why? Because if patients got on the medical physician turntable - no functional improvement, just painkillers, up to and including making them zombies - they would end up in the torture chambers of the surgery room. And then somebody would mention the (AHCPR) guidelines to them, and there would be a lawsuit for failure to refer. Think about that. They had to take referral out.

Now, what evidence do we have?

We have the minutes of the Managed Care Advisory Panel, made up of about five MDs from Trigon and a representative appointed by every competitive medical society in the state of Virginia. Nowhere in Judge Jones's opinion do you see that.

We are talking about where the money goes, and we're talking about official government guidelines that said it should be going to chiropractors, because you should be referring patients, and you don't have anyone to refer them to, other than chiropractors.

Now, I'm just giving you an overview of what's going on, but listen to the echo from the Wilk case. This isn't me talking, it's the Court of Appeals talking.

The purpose of the Wilk boycott was to contain and eliminate the chiropractic profession. This conduct constituted a conspiracy among the AMA and its members, in an unreasonable restraint of trade, in violation of Section One of the Sherman Act. In 1967, the AMA Judicial Council said it was unethical for a physician to associate professionally with chiropractors. "Associating professionally" was defined as making referrals of patients to chiropractors. This opinion was widely circulated to every member of the AMA, and was sent by the AMA to 56 medical specialty boards and associations. As noted by the Court of Appeals, some medical physicians, such as orthopedic surgeons, internists and general practitioners, are in direct competition with chiropractors in this market.

You know who was on that Trigon advisory panel that approved and endorsed the fraudulent back pain guidelines of Trigon? The appointees of the state orthopedic surgeon group, the state internal medicine group, the state pediatric group - name any medical group, and they had a member on the panel. But not one chiropractor. Not one osteopath. Not even one physical therapist was shown these guidelines.

Dr. Scott Haldeman, who was on the AHCPR government panel, has testified that the people who wrote those back pain guidelines were either fraudulent or stupid. I've used my language. You read his language. [Please see www.chiroweb.com/trigon.]

The judge didn't know what to do with Dr. Haldeman's testimony. All he had was an affidavit, and you will read that it is illegal on a motion for summary judgment for a judge to balance credibility. Credibility is for a jury. There was no way he could hurdle over Dr. Scott Haldeman's direct testimony - the world's greatest genius on these particular guidelines.

Do you know what the judge said? He said Dr. Scott Haldeman's credibility is razor-thin. The Supreme Court and the Fourth Circuit have said you cannot judge credibility on a motion for summary judgment. Jurors have to see human beings to judge credibility. You can't judge credibility from a document.

I cannot believe that this case isn't going to be remanded for a full trial on the merits. (Granted, I can't guarantee any outcome because I'm not the judge.) And the information in it is going to hurt Trigon and all those who duplicate their anti-chiropractic tactics, because it will be published by a court of appeals. And the chiropractors have to learn, just like in the Spokes of Chiropractic Progress [found on page 35 of this issue], that knowledge shall set you free. But it won't help you if you don't tell someone about it.

The Spokes of Chiropractic Progress should be cut out and posted in every chiropractic waiting room; sent to every MD in the country; given to every government official, every governor, congressman, and senator; posted on bulletin boards at hospitals; sent to unions, school boards, the Knights of Columbus - you name it.

I have no doubt at all that the Spokes of Chiropractic Progress, and the position we took in the trial court, were partially responsible for the AMA House of Delegates introducing a resolution that the medical schools should incorporate neuromusculoskeletal education into their curriculum. That is because they have now found out that there's this glaring gap between pharmaceutical medicine and surgery, and the MDs have no knowledge whatsoever on how to adequately care for musculoskeletal problems. They are humiliated, and the statements on the Spokes of Chiropractic progress come from their best scholars and from the best government studies. Somehow, that information has got to get out.

When you see or hear someone complain about the Trigon litigation, and say that it has nothing to do with Wilk - that it's a misleading connection - after you've read the brief, [www.chiroweb.com/trigon], deluge those people with copies or e-mail them a link and tell them to read it.

Whatever the agenda is, it's not friendly to the chiropractic profession. If we can get this case turned around, there are enormous possibilities for the profession in the entire United States.

Again, since I have a captive audience, many DCs do not realize that the AMA's expert economic witnesses, e.g., Dr. Lynk from the University of Chicago's lexicon agency, and Dr. Myron Stano, at the Wilk trial, agreed that between 1978, when the Wilk case started, and 1985, with the relaxation of the boycott, chiropractic incomes went up 250 percent. They went from $25,000 to an average of $60,000. If you take $35,000 and multiply it by 30,000 chiropractors, you have a billion dollar-plus increment added to chiropractic incomes by the cessation of that boycott. Think about that.

Now, many of you may not know (but you certainly ought to), that when we first filed the Trigon suit, it included as a defendant Blue Cross/Blue Shield of America, headquartered in Chicago. (You will see many of their documents quoted in the brief.) They knew what we had on them. We had meetings with them, and they suggested that an accommodation could be reached, if we would drop them from the active lawsuit.

Since the purpose of all litigation is dispute resolution, we allowed them to show good faith. At that time, three groups were contending to be included in the federal employee plan: Massage therapists, acupuncturists and chiropractors were stomping at the gates to get in. As a sign of good faith, chiropractic was included for the first time in the federal employee plan that covers 3 to 4 million federal employees and up to 9 million dependents.

Blue Cross/Blue Shield was told that the premiums could not be increased one penny. The government was in a budget crunch. Apparently, they had to take $125 million from the general reserves that were going to medical physicians and hospitals, and allocate it to the chiropractic benefit. Since that time, the government has told Blue Cross/Blue Shield that they must include upwards of another $125 million for ancillary chiropractic modalities.

My math says that's a quarter of a billion dollars now reserved for chiropractors that was never available before. In four years now, that's a billion dollars. Think about that. That money would not have shown up, I contend, if we hadn't included national Blue Cross/Blue Shield as a defendant.

In some places in the U.S., national Blue Cross/Blue Shield has become an advocate of peace and tranquility with the chiropractors - but Trigon refused to do so. In effect, Trigon told the ACA and the Virginia Chiropractic Association (VCA), when they went to a meeting: Stuff it in your ear. If you don't like it, what are you going to do about it?"

Well, we're doing something about it.

This brings up something else. In the last few months, I have been receiving perhaps three and four calls a week from chiropractors interested in filing copycat suits. This trend has increased since the brief was published. The same thing happened in the Wilk case. Lawyers knew that the Wilk case was going forward and, particularly after the first reversal, which sent the case back for a new trial with parameters, the calls increased.

Around the country, copycat suits were filed during the Wilk case. Here is the danger of copycat suits. These copycat suits ran out of gas. They didn't have the will to go another five years into the future, so they accepted settlements that were less than desirable.

Toward the end of the Wilk trial, the chairman of the board of trustees of the AMA was testifying on a Saturday afternoon. We were finished questioning when Judge Getzendanner said, "Doctor, where are you going now?"

He said, "I'm going back to Salt Lake City. I had to move all my patients from this week up to next week because of the trial."

She said, "Call your nurse and move them to another day. Get on the phone and call the trustees and try to figure where, out of your budget, you're going to get the money you're going to have to pay in this case. The plaintiffs are winning this case. This testimony confirms that."

At that point, AMA counsel said "Your honor, we have all these settlements with chiropractors across the country, on essentially the same alleged facts. McAndrews refuses to settle with us. What's good for chiropractors out there, why isn't it good enough for him."

Judge Getzendanner turned to me and asked, "What's your response?"

That was a dangerous position to be in, because none of those copycat suits had gotten an injunction against the AMA, where you may go to jail if you violate it. I said the AMA has such power that when they settle, they suddenly declare victory. I said the AMA finishes up a lawsuit, pays some money, signs some papers, and then says they were right all along, and there's no admission of guilt.

I was throwing papers at her. And she said, "You know, he's got a point here. I think I'll send this to mediation." She said, "I'd like to have Judge Bua, who was the original judge at the trial. Would you agree to have him mediate?"

We went into his chambers. Twenty-seven lawyers, just crammed in. Two on our side, 25 on the other side. And Judge Bua said, "George, what is it you want?" I said, "I want an injunction." He said, "That sounds fair." He looked at them, and a voice said, "We're not going to give them an injunction. There's no way he can win this lawsuit."

Judge Bua stared at the man who'd said that and asked, "Who are you?"

The guy said, "I'm Kurt Johnson, vice president and general counsel of the AMA."

Judge Bua reached into his pocket, took out a ring of keys, put them on the coffee table and said, "My house against your house. You're going to lose."

I believe that when fair-minded people see what happened with Trigon, there is no way they can agree with what the medical physician-dominated Blues - not all of them, but groups of them, like Trigon - have done to chiropractors and to the health, well-being and safety of the patient population.

You read it and make up your own mind, but darn it, read it. It's your profession. They're your patients. Know what's going on. Be willing to make copies of the brief [www.chiroweb.com/trigon] and pass it on. It isn't argument; it's quotations. You'll understand exactly what's going on.

Finally, make absolutely certain that you copy [or download a printable PDF version from www.chiroweb.com/spokes] and distribute thousands of the Spokes of Chiropractic Progress [found on page 35 in this issue]. Educate the entire population on the benefits that chiropractic brings to the health care problems of this nation. Remind everyone that a chiropractic adjustment is far preferable to a surgical knife in the spine, and/or potential drug addiction, ˆ la Rush Limbaugh. Everyone knows that when all you have is a hammer, every problem looks like a nail. The medical profession is faced with that very problem when confronting neuromusculoskeletal problems.

Thank you.

George P. McAndrews, Esq.
Chicago, Illinois