Advice in Wonderland

Employment / Personal Injury / Business

A lawyer’s role often involves debating the meaning of a single word in a document.  However, the abuse of the word “advice” in the case of Jay Doroshow v. Hartford Insurance Company led to one of the saddest and certainly the most perplexing result of my legal career. 

Jay Doroshow came to me for help because Hartford denied his claim for disability benefits.  Jay was diagnosed with Lou Gehrig’s Disease in March 2007.  Lou Gehrig’s Disease, also known as ALS, is an insidious, progressive wasting away of muscle function for which there is no cure.  It robs its victim of voluntary muscle control, brings about paralysis, loss of speech, and ultimately results in death.  Hartford denied Jay’s claim as a pre-existing condition.  Hartford’s policy stated that anyone who received “advice or treatment” for a medical condition in a three-month period prior to the policy’s effective date was ineligible for disability benefits sought as a result of that condition. 

Jay’s effective date for his insurance policy was July 1, 2006.  On May 16, 2006, within the three-month period, Jay went to his family physician for a follow-up visit after suffering a stroke several months earlier.  As a result of the visit, the doctor wrote an office note, as doctors do, noting the various physical ailments of the patient.  The doctor wrote that Jay had been seen in the past for symptoms of leg weakness which “Was not thought to be ALS.”  Indeed, Jay had been tested for ALS back in 2005, but the tests were negative and his doctor ruled it out at that time.  Hartford claimed the doctor’s note stating “Was not thought to be ALS” constituted advice about ALS and denied the claim. 

In the District Court, the judge ruled in favor of Hartford.  Citing the dictionary definition of advice as “a statement offered as a guide to a course of action,” he concluded that a negative diagnosis can indeed be advice because a doctor may rely upon the absence of a particular condition as much as its presence to decide on a particular course of treatment.  The honorable judge, however, overlooked the fact that the Hartford policy required the “advice” to be received by the insured patient.  In Jay’s case, there was no evidence that the doctor discussed ALS with him at the visit or even recommended any course of treatment for his symptoms of leg weakness.  He was there for a follow-up with regard to his stroke.  The judge effectively held that a doctor’s note in  a chart is “advice” even when the patient does not hear it.

In the Third Circuit Court of Appeals, unfortunately two members of the three-judge panel again found in favor of Hartford although on different grounds.  These judges disagreed that a negative diagnosis was “advice” in all cases.  However, they noted that the courts are required to be deferential when reviewing an insurance company’s discretionary determination of eligibility for benefits.  A balance must be maintained to protect the insured’s rights without making an insurer liable for benefits in all cases and discouraging companies from underwriting disability policies in the first place.  The law governing disability benefit policies, the Employee Retirement Income Security Act (ERISA), requires only that an insurance company be able to articulate a “reasonable basis” for its denial of benefits.

In Jay’s case, the Third Circuit panel majority noted Jay’s workup for ALS in 2005 and the fact that he was ultimately diagnosed with ALS in 2007.  Therefore, they ruled it was reasonable for Hartford to conclude from the family doctor’s office note that Jay received advice regarding ALS at that office visit.  The dissenting judge, the Honorable Marjorie Rendell, vehemently challenged her colleagues’ logic.  She argued, as I did in my brief, that one cannot receive advice for something that is not believed to exist.  Jay Doroshow was not guided toward any particular course of action by the family doctor, even if he heard the words “Was not thought to be ALS” because he didn’t think he had ALS.   Now down is up and up is down and everyone is talking in riddles.  A petition for writ of certiorari is pending with the United States Supreme Court.  However, based on the very small number of cases the Supreme Court accepts each year, the odds are against any further opportunity for appeal and certainly Jay will not live to see it.

Sometimes I think the courts and insurance companies forget we are dealing with more than esoteric discussions over the definitions of words.  Jay had premium co-pays taken from his paycheck for his disability benefits.  He may have never given much thought to ever needing them, but certainly expected them to be there if he did.  The loss of Jay’s benefits caused his family considerable financial and emotional hardship during an already physically and emotionally difficult time.  Who would think six words in a doctor’s note could lead to such a tragedy?

Ironically, the Third Circuit’s ruling has created a situation in which a person who has been diagnosed with a disease can be eligible for benefits as long as he avoids going to a doctor for the condition during the “look back” or exclusionary period while a person without a disease and who is told he does not have the disease during the exclusionary period may be denied benefits if it is diagnosed later.

It is even harder to ponder Jay’s situation knowing the entire argument over the definition of the word “advice” would have been unnecessary had Jay been able to continue working past July 1, 2007.  Hartford’s policy removed the preexisting condition exclusion after one year.  However, Jay’s employer denied his requests for certain accomodations Jay felt he needed to keep up with his job as a pharmacist.  He went out on medical leave on March 29, 2007, certainly not foreseeing the firestorm of litigation he was walking into.  A case against Jay’s employer for violating the Americans With Disabilities Act is still pending.

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