The ACA’s fight for the chiropractic profession against Trigon is taken to the next step

Almost since its inception, the federal lawsuit against Trigon Blue Cross Blue Shield of Virginia has been compared to the landmark Wilk v the American Medical Association (AMA) case. Now that the judge has ruled in favor of Trigon, the two cases—separated in time by 3 decades—more closely parallel each other than ever before. As we advance to the appeal phase of this critical legal endeavor, the question remains: Why have the courts overlooked such overwhelming evidence of abuse?

A Raw Deal
The lawsuit, filed in August 2000, seeks to address what the American Chiropractic Association (ACA) believes are discriminatory reimbursement practices against chiropractors by Trigon Blue Cross Blue Shield of Virginia. Among other issues, the ACA’s complaint includes allegations of antitrust violations and Trigon’s unfairly paying doctors of chiropractic 40% less than what it pays medical doctors for the same services. Because Blue Cross Blue Shield is one of the largest insurers in the United States, the outcome of this lawsuit could have far-reaching effects for DCs across the country. Along with the ACA, coplaintiffs in the Trigon case include the Virginia Chiropractic Association as well as several chiropractors and their patients.

The recent ruling in the case, issued April 25, 2003, by US District Court Judge James P. Jones of the Western District of Virginia, contends that Trigon’s Managed Care Advisory Panel, composed solely of medical doctors from various medical societies in Virginia, was not in conspiracy with Trigon to limit coverage of chiropractic services and payments to doctors of chiropractic. The judge maintained that the panel members are agents of Trigon who did not personally benefit from Trigon’s discriminatory policies taken toward doctors of chiropractic.

And yet the judge acknowledged that Trigon sought the panel’s recommendations on the guidelines for low back pain, which blatantly ignored the conclusion by the Agency for Health Care Policy and Research that spinal manipulation is a preferred treatment. An eminent professor of economics, Leonard G. Schifrin, PhD, College of William and Mary, and clinical professor of Preventive Medicine, Medical College of Virginia, who reviewed this matter, concluded that these recommendations caused deterred referral. Placing an economic value on this action, he speculated that millions of insurance dollars went to medical doctors instead of DCs for back care that should have been referred to chiropractors.

For the judge to assert that medical doctors on the panel could remain neutral and not be swayed by their own personal biases and self-interest is to ignore the comments of a professor of economics and 100 years of medical and chiropractic history. The judge in particular ignored the influence of the Virginia medical community in creating this anti-chiropractic attitude, not only within their state but also nationwide.

In the last 50 years, four of the presidents of the American Medical Association have been from Virginia—a significant number considering the size of the state. More significant is that one of the presidents, William S. Hotchkiss, MD, was elected president of the Virginia Medical Society in 1972. In 1974, he was appointed to the infamous AMA Committee on Quackery, which hatched the conspiracy against chiropractic. During the Wilk trial, we learned that only states with particularly virulent anti-chiropractic positions were appointed to the committee. Thereafter, Hotchkiss became chairman of the AMA Board of Trustees and then its president. He assumed the position of president during the Wilk trial.

Barred from ethically boycotting the chiropractic profession, the medical and insurance industries are now working in tandem to conduct an economic boycott against us. Their goal remains to shift patients and revenue away from chiropractic, despite the full understanding that consumers would benefit from chiropractic treatment. This scheme ensures medical doctors maintain their massive portion of the health care market while millions of patients are denied access and fair reimbursement for chiropractic care.

Throw Down the Gauntlet
The ACA plans to challenge not only the judge’s decision that the opinions of the panel were not biased or self-serving but also his decision earlier in the case that prevented us from conducting discovery prior to 1996. It was prior to 1996 that Trigon’s low back pain guidelines were developed. It was prior to 1996 that the restrictions (caps, discounts, etc) on chiropractic care were developed. An appellate decision reversal of the judge’s decision will help demonstrate that the conspiracy that existed since 1996 between the medical community and Trigon had its origins and flourished even more prior to that time.

It may be difficult for a judge to fathom the full extent of the abuse against chiropractic. But the appeals process will allow us to demonstrate what DCs already know: A conspiracy between the medical and insurance communities that Judge Susan Getzendanner, who presided in the Wilk case, ruled existed in 1987 simply went underground, and nowhere has it become more prevalent than within the powerful Trigon Blue Cross Blue Shield system.

We were victorious in the Wilk v AMA antitrust suit but not before the chiropractic plaintiffs went through a federal appeals court and the US Supreme Court for a decision in their favor. Lead attorney George McAndrews maintains that “in the Wilk case, I deliberated on whether or not to appeal for 30 days. In the Trigon case, I deliberated for 30 seconds.”

The ACA has until August 18, 2003, to file its appeal brief. Trigon will then have 30 days to file its response, and we will then have 15 days to file a reply. Then it goes before a three-judge panel of the US Court of Appeals (4th Circuit). The ACA will not only seek to have the case returned to the district court for trial but also seek to obtain the extended discovery prior to 1996 that had been denied by the district court. There will in all likelihood be a hearing before the three-judge panel in Richmond after all the pleadings have been filed. A decision from the appeals court is anticipated within 7 to 9 months after that.

We are optimistic that the depth of analysis applied by judges in the appeal process will lead to the simple justice doctors of chiropractic have so patiently sought throughout the history of our profession. Chiropractic can win again. Our cause is just and compelling. All we need is the courage and financial resources to continue the fight.

“Winning the Wilk case was a monumental accomplishment and was supported by the entire profession. Now is the time for the profession to come together and stand behind the Trigon lawsuit with money and endorsements from all organizations and members of the profession. We cannot back down now,” William F. Holmberg, DC, chairman of the Antitrust Fundraising Committee, says.

This is a fight for our profession and our patients, and it will require thousands of more DCs to contribute if we are going to continue to meet the deep pockets of our adversaries. If you are among the 9,000 doctors who have contributed, thank you. We need you to contribute again and to reach out to your colleagues to get them involved as well. We have more than 900 doctors contributing monthly, and we need many more. We have an opportunity today to right the wrongs that exist with access and reimbursement. I implore every doctor of chiropractic who truly cares about the future of your profession and the patients who need your care to get involved!

To view a short video on chiropractic’s struggle against discrimination, please visit www.acatoday.com and first click “Fighting for Chiropractic” and then “Simple Justice.” CP

J. Michael Flynn, DC, is the Whip of the National Chiropractic Legal Action Committee and former chairman of the ACA Board of Governors. He was named ACA’s 2002 Chiropractor of the Year. He is a second-generation doctor of chiropractic and practices in Houma, La. Flynn can be reached via email: flynn@cajun.net.