June 2004

ACA, VCA TO PETITION U.S. SUPREME COURT IN TRIGON CASE

The American Chiropractic Association (ACA) and the Virginia Chiropractic Association are set to petition the U.S. Supreme Court to hear the federal antitrust and racketeering lawsuit against Trigon Blue Cross Blue Shield after the U. S. Court of Appeals for the 4th Circuit on June 2 rejected a petition to rehear the case.

“The actions of the 4th Circuit were not entirely unexpected, since U.S. Courts of Appeal are reluctant to revisit decisions that have been handed down by any panel,” said ACA Chairman of the Board George McClelland, DC. “This only strengthens our resolve to continue this important legal struggle and seek justice for our patients and our profession from the highest court in the land - the U.S. Supreme Court.”

The issues raised in the petition, however, suggest a direct conflict between the decision of the U.S. Court of Appeals for the 4th Circuit and the two decisions of Supreme Court of the United States [Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) and U.S. v. Paramount Pictures, Inc., 334 U.S. 131 (1948)],as well as a direct conflict between the decision of the 4th Circuit and a decision of the U.S. Court of Appeals for the 6th Circuit [Nurse Midwifery Assoc. v. Hibbett, 918 F.2d 605].

Both are issues that are frequently examined by the Supreme Court of the United States: (1) a lower court being out of sync with a controlling decision of the Supreme Court, and/or (2) a conflict between two lower courts of appeal requiring refereeing by the Supreme Court to establish which court of appeals decision and reasoning is correct.

The ACA cites in its lawsuit that a conspiracy existed between Trigon and the medical specialty societies in Virginia to ensure that patients with musculoskeletal conditions were diverted to medical doctors instead of doctors of chiropractic. A key piece of evidence in ACA's case was the existence of a committee established by Trigon to review low-back guidelines published in 1994 by the federal government's Agency for Health Care Policy and Research (AHCPR) — guidelines favorable to chiropractic — and to recommend appropriate protocols for referring patients to chiropractic doctors

The committee was appointed from a pool of representatives recommended by medical specialty associations from throughout the state of Virginia. No doctors of chiropractic were appointed to the committee and no chiropractic associations in Virginia were given the opportunity to submit names of nominees to the committee. As a result, the committee published guidelines that did not mention the positive effects of spinal manipulation that had been a highlight of the AHCPR report. The committee instead diminished spinal manipulation's value, and in doing so, essentially invalidated a legitimate federal study, according to the ACA.

The Court of Appeals found that the committee was an agent of Trigon — not a separate entity — and therefore no conspiracy existed. Instead, the court likened Trigon's actions to a hospital's credentialing "peer review" process — in which a group of medical physicians determines the qualifications of other medical doctors who are candidates for employment.

The ACA believes a conspiracy did exist, and it is inappropriate to compare a hospital's credentialing review process to the types of coverage, payment and referral policy making decisions engaged in by Trigon and the selected medical societies.

“We want to bring Trigon’s harmful and discriminatory practices to an end, but, equally important, we must keep in mind the big picture,” added McClelland. “We must send a strong signal to all who would seek to oppose, harm, or discriminate against us: we will never give up and will always fight back.”

The ACA and other plaintiffs have 90 days to petition the Supreme Court of the United States for review.

Source: American Chiropractic Association, www.amerchiro.org

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