Aetna Faces Class-Action Suit
Over Information to Members
By CAROL GENTRY
Staff Reporter of THE WALL STREET JOURNAL
A Philadelphia law firm has filed a lawsuit seeking class-action status
against Aetna Inc.'s Aetna US Healthcare unit, accusing the health plan of
withholding vital information from its members.
It is the second in a series of class-action suits expected to be filed
health-maintenance organizations in coming days. The first suit, against
Humana Inc., was announced Monday.
The Aetna case was filed late Monday in
federal court in Philadelphia on behalf of
Anthony Conte of Wilmington, Del., and all
other members of Aetna US Healthcare's
HMO plans who receive their coverage as an
employee benefit. The lead law firm is Berger
& Montague, which specializes in class-action
Officials at Aetna of Hartford, Conn., who received the court documents
late Wednesday, didn't comment on the specific allegations in the case.
The company issued a statement saying lawyers suing insurers target the
industry "for their own profits" at the expense of employers and families
who pay for care.
Aetna insures 21 million people, almost seven million of whom are in its
HMO, according to a spokesman.
Jerome Marcus, an attorney with Berger & Montague, said Mr. Conte
didn't suffer physical injury, but was nevertheless put at a disadvantage by
having vital information withheld from him when he enrolled, such as how
his doctor is paid. Doctors "get whacked" when they prescribe a drug or
treatment that falls outside Aetna's guidelines, Mr. Marcus said. A note
goes into the file, he said, and it affects the doctor's pay.
Aetna also gives doctors financial incentives to influence their medical
judgment, the lawsuit says. Yet the promotional materials and plan
summary presented to Mr. Conte and fellow enrollees don't describe those
incentives, according to Mr. Marcus.
Employees need the information to decide whether to subscribe, and if
they do, they need to know the payment arrangements so they can weigh
their doctor's advice more accurately and investigate other treatment
options more aggressively, the lawsuit states.
"This is not a case that says managed care is bad," Mr. Marcus said.
"We're agnostic on that question. We're saying [the financial information]
has to be disclosed."
While the legal theories in this case appear to differ from those alleged
class-action suit against Aetna that was dismissed by a federal judge last
week, the company said, some of the underlying issues may be similar.
Aetna said its practice "is to provide full disclosure on how physicians are
paid and how coverage decisions are made."
The latest suit against Aetna takes a different tack than the suit against
Humana of Louisville, Ky., which contained accusations of fraud and
violation of the federal antiracketeering statute. The Aetna suit asks the
court to find that the company has a fiduciary duty to provide accurate and
complete information about the nature of the benefits provided by
self-insured employers under the Employee Retirement Income Security
Act, or Erisa.
Wendy Parmet, a professor in health law at Northeastern University Law
School in Boston, said that while she doesn't know the details of this case,
it may be difficult to get this class-action certified because Aetna HMO
plans differ from employer to employer. In addition, she said, health plans
sometimes disclose payment information to the employer, but the employer
doesn't necessarily pass it on to the workers. Under Erisa, she said,
employees are entitled to an accurate summary, but not the whole plan,
which can be as big as a telephone book and is "incomprehensible to the
average lawyer, let alone the average employee."
Mr. Marcus said Erisa permits summaries, "but they have to be accurate."
Financial incentives that may distort the quality of care are of such
importance that they must be included in the summary, he said. The suit
seeks to force Aetna to make such disclosures and pay the costs of
bringing the suit and compensatory damages.