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U.S. Court In Louisiana Holds That Health Plan May Be Negligent For Drug Coverage Decision

 
 

HLD, v. 33, n. 6 (June 2005)

U.S. Court In Louisiana Holds That Health Plan May Be Negligent For Drug Coverage Decision

A federal district court in Louisiana refused to dismiss a health plan enrollee's negligence claim against her insurer alleging that its decision not to cover a more expensive version of the drug she was taking forced her to switch to an alternative generic that caused her injuries. The court granted the insurer summary judgment, however, on the enrollee's claim under the Louisiana Health Maintenance Organization Act (Act) because no private right of action existed under the statute.

Rosalind Zoblotsky suffered from cirrhosis of the liver and underwent two liver transplants. Following the second transplant, Zoblotsky was taking Neoral, the brand name of the immunosuppressive drug Cyclosporine. After her husband lost his group health insurance, Zoblotsky enrolled in Tenet Choice 65 (Tenet Choice), a supplemental Medicare plan. According to Zoblotsky, Tenet Choice initially agreed to pay for the generic form of Cyclosporine, known as Gengraf, with a $10 copayment, but six-months later refused to do so when a cheaper generic alternative became available. Shortly after Zoblotsky began taking the generic alternative, she suffered an acute liver rejection. Zoblotsky sued Tenet Choice, alleging the health plan had been negligent and had violated the Act. Tenet Choice moved to dismiss.

The U.S. District Court for the Eastern District of Louisiana denied the motion as to the negligence claims but granted it as to the statutory claim. The appeals court rejected Tenet Choice's contention that summary judgment on Zoblotsky's negligence claims was appropriate because her treating physician prescribed the generic alternative and the health plan did not "force" her to take the drug. In so holding, the court found Zoblotsky's physician only changed the prescription after learning from the pharmacy that the insurance would no longer cover Gengraf and did not "consciously desire" to make the switch.

Tenet Choice also maintained that Zoblotsky could have continued to take Gengraf for a nominal increase and therefore the plan did not limit her choice of drug. But the court noted some confusion on the issue of whether Zoblotsky could continue to take Gengraf at a $10 copayment rather than a 10% copayment, which would more than double the prescription's cost. Thus, the court found a genuine issue of material fact regarding whether Zoblotsky could have purchased Gengraf for a price similar to that of the generic Cyclosporine, making summary judgment on her negligence claims inappropriate.

The court granted, however, Tenet Choice's motion for summary judgment on Zoblotsky's claims that the health plan violated the Act by denying her necessary and appropriate immunosuppressant drug therapy. Specifically, the court found the Act did not provide a new cause of action in tort to plan enrollees and could only be enforced by the Louisiana Commissioner of Insurance.

Zoblotsky v. Tenet Choices, Inc., No. 03-2957 (E.D. La. April 26, 2005). To read the case, go to http://www.judiciary.state.nj.us/opinions/a4706-03.pdf

 

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