Murray WaasWASHINGTON
Wed Mar 17, 2010 1:40pm EDT
WASHINGTON (Reuters) - In May, 2002, Jerome Mitchell, a 17-year old college freshman from rural South Carolina, learned he had contracted HIV. The news, of course, was devastating, but Mitchell believed that he had one thing going for him: On his own initiative, in anticipation of his first year in college, he had purchased his own health insurance.
U.S. | Health | Healthcare Reform
Shortly after his diagnosis, however, his insurance company, Fortis, revoked his policy. Mitchell was told that without further treatment his HIV would become full-blown AIDS within a year or two and he would most likely die within two years after that.
So he hired an attorney -- not because he wanted to sue anyone; on the contrary, the shy African-American teenager expected his insurance was canceled by mistake and would be reinstated once he set the company straight.
But Fortis, now known as Assurant Health, ignored his attorney's letters, as they had earlier inquiries from a case worker at a local clinic who was helping him. So Mitchell sued.
In 2004, a jury in Florence County, South Carolina, ordered Assurant Health, part of Assurant Inc, to pay Mitchell $15 million for wrongly revoking his heath insurance policy.
In September 2009, the South Carolina Supreme Court upheld the lower court's verdict, although the court reduced the amount to be paid him to $10 million.
By winning the verdict against Fortis, Mitchell not only obtained a measure of justice for himself; he also helped expose wrongdoing on the part of Fortis that could have repercussions for the entire health insurance industry.
Previously undisclosed records from Mitchell's case reveal that Fortis had a company policy of targeting policyholders with HIV. A computer program and algorithm targeted every policyholder recently diagnosed with HIV for an automatic fraud investigation, as the company searched for any pretext to revoke their policy. As was the case with Mitchell, their insurance policies often were canceled on erroneous information, the flimsiest of evidence, or for no good reason at all, according to the court documents and interviews with state and federal investigators.
The revelations come at a time when President Barack Obama, in his frantic push to rescue the administration's health care plan, has stepped up his criticism of insurers. The U.S. House of Representatives is expected to vote later this week on an overhaul of the health system, which Obama has said is essential to do away with controversial and unpopular industry practices.
Insurance companies have long engaged in the practice of "rescission," whereby they investigate policyholders shortly after they've been diagnosed with life-threatening illnesses. But government regulators and investigators who have overseen the actions of Assurant and other health insurance companies say it is unprecedented for a company to single out people with HIV.
In his previously undisclosed court ruling, the judge in the Mitchell case also criticized what he said were the company's efforts to cover its tracks.
Assurant Health said that as a matter of policy it did not comment on individual customer claims.
"We disagree with certain of the court's characterizations of Assurant Health's policies and procedures in the Mitchell case," it said in a statement provided by spokesman Peter Duckler, adding: "The case continues to progress through the appellate process."
"REPREHENSIBLE" CONDUCT
Much of the trial record of the Mitchell case is bound by a confidentiality order and not available to the public. But two orders written by the presiding judge, Michael G. Nettles, a state circuit judge for the 12th Judicial District of South Carolina, of Florence County, describe the case in detail. Judge Nettles wrote the orders in response to motions by Assurant that the jury's verdict be set aside or reduced.
In the motions, Nettles not only strongly denied Fortis' claims but condemned the corporation's conduct.
"There was evidence that Fortis' general counsel insisted years ago that members of the rescission committee not record the identity of the persons present and involved in the process of making a decision to rescind a Fortis health insurance policy," Nettles wrote.
Elsewhere in his order, Nettles noted that there were no "minutes of actions, votes, or any business conducted during the rescission committee's meeting."
The South Carolina Supreme Court, in upholding the jury's verdict in the case in a unanimous 5-0 opinion, said that it agreed with the lower court's finding that Fortis destroyed records to hide the corporation's misconduct. Supreme Court Chief Justice Jean Hoefer Toal wrote: "The lack of written rescission policies, the lack of information available regarding appealing rights or procedures, the separate policies for rescission documents" as well as the "omission" of other records regarding the decision to revoke Mitchell's insurance, constituted "evidence that Fortis tried to conceal the actions it took in rescinding his policy."
In affirming the trial verdict and Nettles' order, Toal was as harsh in her criticism of the company as Judge Nettles had been. "We find ample support in the record that Fortis' conduct was reprehensible," she wrote. "Fortis demonstrated an indifference to Mitchell's life and a reckless disregard to his health and safety."
Fortis canceled Mitchell's health insurance based on a single erroneous note from a nurse in his medical records that indicated that he might have been diagnosed prior to his obtaining his insurance policy. When the company's investigators discovered the note, they ceased further review of Mitchell's records for evidence to the contrary, including the records containing the doctor's diagnosis.
Nettles also suggested that Fortis should have realized the date in the note was incorrect: "Not only did Fortis choose to rely on one false and unreliable snippet of information containing an erroneous date to the exclusion of other information which would have revealed that date to be erroneous, Fortis refused to conduct any further investigation even after it was on notice the evidence which aroused its suspicion to be false," the judge noted.
Fortis "gambled" with Mitchell's life, Nettles wrote.
Their motive, according to the judge, was obvious: "The court finds that Fortis wrongfully elevated its concerns for maximizing profits over the rights and interest of its customer." In upholding Nettles' verdict, the South Carolina Supreme Court similarly ruled that "Fortis was motivated to avoid the losses it would undoubtedly incur in supporting Mitchell's costly medical condition."
While declining to comment on specific cases, Assurant said in the statement: "All insurance companies have processes to review claims to ensure their accuracy, completeness and compliance with policy provisions and we evaluate all claims on an individual basis."
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