Can a disability insurer force its insured to undergo surgery? That was the issue raised in the recent ruling in Paul Revere Life Ins.Co. v. DiBari, 2010 U.S.Dist.LEXIS 122906 (D.Conn. Nov. 19, 2010); and while the answer to the question is no, the court ruled in DiBari that the insurance company did have the right to condition the receipt of benefits on the insured undergoing surgery. The plaintiff, Michael DiBari, was a dentist who developed carpal tunnel syndrome, which prevented him from practicing dentistry. Although he was initially found disabled, the insurer demanded that DiBari undergo surgery as a condition of receiving ongoing benefit payments. DiBari refused, and his benefits were terminated. The issue before the court was whether DiBari’s refusal to undergo surgery could be used as the basis for the benefit termination.
The insurer had amassed a great deal of evidence establishing that DiBari was a candidate for carpal tunnel release surgery, that he had no contraindications to the surgery and that the surgery had a very high success rate and low risk of complications. DiBari’s insurance policies required that the insured be “receiving regular and personal physician’s care, which is appropriate, under prevailing medical standards, for the condition causing his disability.” The insurer claimed that “appropriate” care included surgical care, since, under the circumstances, the surgery was low risk and offered a high probability of success.
However, DiBari asserted that he met the policy requirement so long as he continued to see a physician for his condition, which adequately sufficed to show that he was receiving regular and appropriate care. The court agreed, but only to a point. The court noted that if the policy merely required “regular care,” under Heller v. Equitable Life Assurance Society, 833 F.2d 1253, 1257 (7th Cir. 1987), surgery would not be mandated. In Heller, the plaintiff, an invasive cardiologist, declined to undergo surgery for carpal tunnel syndrome; and the court upheld his right to do so on the ground that the regular care requirement in the policy did not necessitate that he undergo surgery. However, in this case, in addition to a “regular” care requirement, the policy also required “appropriate care.” That addition led two other courts to rule that surgery was required if appropriate and presented a low level of risk of complications: Provident Life & Accident Ins. Co. v. Henry, 106 F. Supp. 2d 1002, 1003-05 (C.D. Cal. 2000); Reznick v. Provident Life & Accident Ins. Co., 364 F. Supp. 2d 635, 638 (E.D. Mich. 2005). The court also referred to Buck v. Unum Life Ins. Co., No. C-08-5166 MMC, 2010 WL 887379 (N.D. Cal. March 11, 2010), which involved two separate policies, one of which required only “regular care,” while the other required “appropriate care.” As to the latter policy, the court concluded that appropriate care required the insured to undergo surgery deemed to have a high likelihood of success and low risk of adverse complications, while the policy requiring regular care did not mandate the insured undergo surgery.
The cited cases were distinguishable, though, because in each of those cases there were questions of fact as to whether the insured was an appropriate candidate for surgery without any contraindications. In this case, however, the court commented that both the treating physicians and the insurer’s consultants were in agreement that carpal tunnel release surgery was neither contraindicated nor medically inappropriate and had a high rate of success.
DiBari had also declined the surgery on his own volition without any medical advice suggesting it would be inappropriate to undergo the surgery. Therefore, the court concluded, “these undisputed facts demonstrate that by forgoing release surgery despite the failure and impracticality of other treatment options and where his doctors did not believe that there was any reason that this surgery would pose a risk to DiBari or be otherwise unsuccessful, DiBari failed to seek and accept appropriate care.” The court made it clear, though, that it was not imposing a requirement on DiBari that he undergo surgery; only that “his choice carries with it the consequence that under the terms of the Paul Revere Policies, he no longer qualifies for disability benefits because he has failed to seek and accept care that is appropriate to treat his bilateral carpal tunnel syndrome.”
This ruling raises more questions than it answers. In Heller, the 7th U.S. Circuit Court of Appeals interpreted the “care of a physician” requirement to bar the insurer from determining the nature or course of treatment the insured received. And while it can be said that the court in DiBari was clear in stating that DiBari was not being ordered to undergo surgery, without the ability to continue in his profession and lacking the financial support the insurance was intended to provide, the compulsion may be irresistible. Moreover, it is difficult to see where the line is to be drawn. Some people may resist surgery out of religious conviction; others because of an aversion to pain of any kind. And since all surgery involves some level of risk, what level of risk is to be deemed low enough before the treatment is required as a condition of receipt of benefits? This ruling also has implications with respect to other disabilities. For example, in treating psychiatric patients, may psychiatrists have differing views as to the standard of appropriate care. Or medications may have such profound side effects that patients would choose to forego taking medications that cause drowsiness or dizziness, or even medications that might become addictive. The Social Security disability program has a regulation that only partially addresses these issues. According to 20 C.F.R. § 404.1530(c), failure to follow prescribed treatment is excused for the following reasons:
(1) The specific medical treatment is contrary to the established teaching and tenets of your religion.
(2) The prescribed treatment would be cataract surgery for one eye, when there is an impairment of the other eye resulting in a severe loss of vision and is not subject to improvement through treatment.
(3) Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment.
(4) The treatment because of its magnitude (e.g., open heart surgery), unusual nature (e.g., organ transplant) or other reason is very risky for you.
(5) The treatment involves amputation of an extremity, or a major part of an extremity.
However, the regulation fails to address the issue of “appropriate” treatment and who gets to decide whether treatment is appropriate – the patient, the treating doctor or the insurer. All of these questions will await the outcome of future litigation.
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This article was initially published in the Chicago Daily Law Bulletin.