A claimant speaks -- Part 2 (turns out he reads too)

Wendell Potter, former mouthpiece for the insurance industry, let his conscience be his guide, and became one of our heroes. Mr. Potter has now authored a must-read book, Deadly Spin. Our contributor-claimant read the book and, with our thanks, offers this review:

Deadly Spin: A Review

After reading Wendell Potter's book, “Deadly Spin”, I am struck at how hard it is to suppress my anger and resentment towards the man and focus on the message. This may be proof of its accuracy. There is no other way to put it. Wendell Potter willingly led an evil life. We all have to make choices about how far we are willing to go to earn our living and pay our mortgages.

The book does a solid job of explaining the problems with our for profit insurance system. It could be characterized as required reading for anyone with or without health insurance. Mr. Potter describes the problems of the system and lack of regulation. I felt he did not write enough about his “soul searching” and decision to leave Cigna. He devotes two pages and a few sentences about alcohol which could easily be expanded. I think it is important for society to understand the mind-set of those who believe they deserve power and profits at the expense of others.

I hope he is a changed person. We all deserve a chance to redeem ourselves. Welcome back to humanity, Wendell. I hope you make a difference.

I found the value of this book in its ability to educate the layperson on the tricks, tactics and manipulation techniques of the PR industry. The book provides a guide to alert the consumer when PR is negatively influencing, manipulating them.

(Disclaimer- this is a review intended to present many of the ideas in the book. As such, ideas and concepts come directly from the book. )

PR- A definition

Believe it or not, the PR industry has a Code of Ethics! It has a perverse value system but worth learning in order to recognize when you are being influenced by someone’s agenda.

Wendell Potter defines PR as "the management function that establishes and maintains mutually beneficial relationships between an organization and the public on whom its success or failure depends.” That definition emphasizes the two-way nature of PR. It is in direct opposition to the one-way communication that characterizes both propaganda and advertising. While it’s a nice definition, it’s deliberately misleading.

PR- In Action
Mr. Potter writes that good PR is intentionally subtle and hard to spot. It's about controlling what is said and thought about the client. PR firms know how and where to place their message to reach their target audiences.

In a high stakes fight, PR firms routinely create subversive front groups. They attack and discredit opponents, spread false information, lie, distort the truth and instill fear. In fact, PR firms can be so effective that they have convinced a large segment of the population to vote contrary to their own best interests. Those among us who suffer the most are voting to continue the very system, which hurts them.

The Tools of PR Industry

Knowledge remains power. If we learn to recognize the tactics and dirty tricks, we can fight back. The following is a list of tactics regularly used by the PR industry. It's worth committing them to memory. They will alert you to the fact you are being manipulated!

1. Fear

Organizations with the most to lose are most likely to resort to fear mongering. Their information may mention the loss of jobs, a threat to public health, or general decline in social values, standard of living, or individual rights. It may also vilify a specific cause or even a specific person in order to create the desired point of view.

2. Glittering generalities

This approach arouses strong positive emotions by using words and phrases like "democracy," "patriotism," "American way of life." The tactic is used to either support a cause or destroy an individuals or groups reputation.

3. Testimonials

Celebrities or recognized “experts” are frequently recruited and hired to provide testimonials about a product, cause, company, organization, or candidate.

4. Name-calling

Blatant insults are a proven, effective public-relations tool. The goal is to associate the target of the insults with a negative for unpopular cause or person. Defending against name-calling can be difficult. Negative terms tend to stick, even if they are undeserved.

5. Plain folks

Any time a business executive or politician or other individual poses with rank-and-file employees or customers, he or she is claiming to be "of the people". Being identified with"" plain folks is both good business and good politics. Do you really a billionaire is just like you and I?

6. Euphemisms

PR practitioners often select words that obscure the real meaning of actions or concepts. The tactic is sometimes called to "doublespeak"," Weasel words," or "Spin." For instance, an employee may be "transitioned" rather than fired and a lie may be called a "misunderstanding or misinterpretation."

7. Bandwagon

The bandwagon message is that everyone else is doing or supporting the process. And, you should, too. Opinion polls are created to show a large percentage of people are on the bandwagon, but polls are carefully designed and managed. Polls are shaped in advance by structuring questions to elicit specific responses.

8. Transfer

Similar to testimonials, the transfer of approach involves using the approval of a respected individual or organization. This can be used as a device by which a PR campaign can utilize the authority, sanction, and prestige of something we respect and revere in order to influence our opinion. They can also include trusted members of society such as teachers, firefighters or activists.


Protecting Yourself: How to recognize SPIN

The book gives some sound advice on how to spot the SPIN and telltale signs of a PR firm.

1) If the message sounds too good to be true, it is. Some examples include: The oil company that wants to reduce dependence on oil. The Health insurance company that wants to keep you healthy or the finance company that wants to help you make money. This is a sign of PR at work.

2) In public debate recognize when PR firm is reframing the debate in order to shift the focus away from their client. They will use misleading information to redirect blame or create controversy.

3) Recognize the affect of PR in advertising. Be wary of any ad that promotes the virtues of a corporation and its contribution to society. This includes advertising that carries a message that a company or industry is making your life better. Be wary of the use of philanthropy to counter negative publicity and questionable behavior.

4) Recognize the affect of PR firms and the use of third-party front groups. For example, the Center for Consumer Freedom is funded by tobacco companies to "protect the rights" of people to smoke in restaurants. Front groups are used to avoid revealing their funding sources. To verify true purpose of a third-party group use Sourcewatch.

Lastly, don’t forget to check out Center for Media and Democracy for validating information.

The Problem, redux

Around the first day of each month I'll be posting a reprise of the first post on this blog, which contains an overview of the Problem. It'll be updated and edited as we go along. But I'd like to have a summary of the Problem available frequently, hence the monthly repeat and update. So off we go...

ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and welfare benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.

Way, way to the contrary.

This blog is dedicated to the ERISA problem.

What is that problem? It mainly concerns those welfare benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- welfare benefit plans were an afterthought.

And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense:

If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy, and in the vast majority of cases a successful claimant is not made whole; not even close. And ERISA severely compromises your ability to secure even the scant remedies it does provide.

1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).

The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.

As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, and ERISA says there is no meaningful consequence for that, then it follows that's what insurers will do.


2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is generally limited to that which the insurer unilaterally decided to include within its claim file; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.

The Republicans are gearing up to take a shot at repealing Obamacare. If that happens, then the least we could do is to ensure that those people who are fortunate enough to have insurance at least have some meaningful ability to enforce insurers' promises in court.

But never mind Obamacare; ERISA matters a lot anyway. If you get your insurance through your employment, then -- thanks to ERISA -- consider yourself to be uninsured. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.

A claimant speaks -- Part 1

From the front lines of ERISA abuses comes the following by a claimant who's just been through the ringer of an ERISA dispute. Not gonna name him; he's an interested reader who has offered to share his experiences. If you've perused this blog at all nothing he says will surprise you. But it's yet another indication that ERISA affects real lives in very bad ways.

The claimant in question has contributed a significant amount of material, so this'll be a series, of which the first installment is here:

Canceled: “ERISA is Everyone’s Problem”

Disclaimer: The story is true. Certain facts have been changed to prevent any legal issues and protect the privacy of individuals. This account was written using a voice to text translation program, therefore, the writing style and syntax may be affected.


My decision to post on this blog is to highlight the risk posed by ERISA. The laws no longer protect the individual or society as originally intended. A modern society cannot prosper without a well functioning health system. Health Insurance is not a right or a luxury. It is a necessity. We all get sick and need to access health services throughout our life. It is also important to realize that some industries are more important than others. They play a critical role in society and are worth protecting. Two obvious examples: Health Insurance is more important than chewing gum or perfume.

This not a story arguing the merits of free markets or government controlled health care. This is a warning of what happens when industries cross a line and become dangerous to society. Throughout U.S. history, there have been movements to limit and reform predatory industries. ( Example: Theodore Roosevelt dismantling the large Trusts and Oligopolies)

Today, insurance companies have amassed so much money and power that they operate by their own set of rules. The normal checks and balances of the free market system are no longer sufficient. To use a term from economic textbooks, these companies become “predatory” to both the individual and society. We saw this recently in the banking crisis and housing bubble. Wall Street banks operated, according to their own dictates, outside of the norms of free market system. The current legislation and the free markets failed to regulate and protect society from these predators.

Free Markets vs. Predatory Markets
In economics, they make a distinction between free market competition and predatory competition. In a free market system, companies create net wealth to society through jobs, taxes and profits. In a predatory system, companies take the wealth produced and distribute the profits to a select group. For society, it’s a difference between wealth creation and wealth destruction.

In a predatory system the balance of power is squarely with the company. They have enormous power to write laws, terminate employees and operate almost without recourse.

Recent history provides many examples from Tyco to Enron. Executives pay themselves large packages regardless of operating results and profits. Management runs these companies are run as if they are the property a select few to take wealth and value from the communities that produce them.

Identifying Predators
It is not always easy to identify a predatory business. However, it’s easy to identify three important indicators:

1) High Executives compensation. They are high relative to other industries or average employee salaries and are paid regardless of economic cycles.

2) Limited Employee rights. In a free market, employees retain a measure of protection and job security for performance. Under a predatory system, operating performance, profits and high productivity do not protect employees.

3) Culture or business model. In a predatory system, you are not an employee. You are never an asset. You are a liability. You are not part of wealth creation process.


Risk to Free Market System
Historically, the self-regulation of the free market has failed to keep predators from taking control of key industries. Wherever there are markets, there is unfortunately a need for regulation. Our free market system was never intended to let the interests of a few dominate the rights of all.


My ERISA story.
For 14 years, I worked for a large, profitable medical equipment supplier *

I was injured on the job and underwent two neck surgeries. I returned to work for a ten-month period but ended up aggravating my injury. In 2005 I had to stop working. Two additional surgeries later, I found myself 43 years old, disabled, in constant pain and unable to care for myself.

However, I never lost hope. I had excellent doctors, medical insurance and the support of good friends. My treating physicians were among the best in the country. They were authorities in their fields and had authored medical textbooks.

Financially, I was surviving. I thought that as long as my former employer was financially strong, my benefits would continue. My injury was well documented and I made sure to respond to all requests for medical information. I believed any attempt to challenge my case would be a waste of time and resources for any insurance company.

In retrospect, I was naive.

Health Insurance: It’s about money
Health Insurance is a misnomer. It is not about protecting your health. It is about return on investment.

When you are paying premiums, the industry is happy to have you as a customer. However, once you start collecting on a claim, you have become a liability. Unfortunately, the more you need the payments, the bigger the liability you become. If you have the misfortune to have cancer or become disabled, you often become a priority target.

Insurance companies pay a sizeable portion of their staff to deny coverage or cancel coverage. These are not the official job titles, but its what they are paid to do. To save their jobs, they must do their jobs. They must cancel policies. It’s a vicious circle.

Storm Signals
In 2008, as the stock market bust and housing bubbles ripped through the economy, No less than Warren Buffet, whose company owns GEICO insurance, started to predict tougher times ahead for the insurance industry.

A quick check revealed that, despite the economic downturn, my disability carrier Inco (not real name) was profitable. The CEO had been among the top three earning insurance company executives for the decade. Additionally, the industry continued to do well. The U.S. Department of Health and Human Services reported that profits for the 10 largest U.S. insurance companies jumped 250% between 2000 and 2009 while millions of Americans have lost coverage.
In 2009, the trend continued. Inco executives continued to pay themselves enormous salaries. This could only be done by large scale cost cutting. I started to get nervous.

I did not know, as early as 2009, Inco had already decided to terminate my benefits. They were in the process of constructing a paper trail. After all, ERISA has been gutted. For Inco, there was no risk in trying.

Cancellation: Actions without consequences
The outline below describes a series of deliberate actions by Inco in flagrant violation of good faith and proper procedure. They are examples of Inco, deliberately withholding information, omitting material facts and misleading treating physicians.


Violation #1:
In violation of due procedure, Inco called my lawyer to inform him my benefits had been terminated retroactively at the end of the prior month.

Violation #2:
Inco did not send an explanation letter until three weeks post termination. The letter did not correspond to the reasons cited in the phone conversation.

Violation #3:
For cause of termination, Inco stated, failure to supply medical information. Yet, in the same termination letter, they referenced the information they claimed to be missing. Inco refused attempts to clear up any misunderstandings.

Violation #4
The Inco medical report and termination letter deliberately omitted basic information including: Diagnosis, number and types of surgeries, results of surgeries, use and indication for medications, daily functional state and ability to perform work.

Violation #5
Inco deliberately misrepresented the opinion of treating physicians. Several attempts by the physician and my attorney to rectify the situation were ignored.

Violation #6
In a request for medical information, Inco deliberately misled a treating physician. Several attempts to clear up the matter were ignored.

In the end, I was lucky. Inco had so clearly violated good faith and misrepresented the facts that benefits were eventually reinstalled. I suffered financial damages and was nearly forced to sell my condo. Under ERISA I am not entitled to recover any financial losses. I can only wonder how many others were cancelled and unable to reinstall benefits either due to lack of financial resources, lack of legal representation or failure to keep documentation.

ERISA is the Problem
As noted in the blog, the insurance industry has changed the ERISA laws to exempt themselves against wrongful termination as well as losses and damages inflicted on improperly or illegally terminated policies. There is nothing to stop an insurance company from withholding benefits and waiting you out to see if you have the financial resources, education, and legal skills to regain your benefits.


What to do:
There are several steps to take to educate and protect yourself. I’ve outlined a few below.

1) Be proactive: Understand it can happen to you
2) Support reform: It is the right thing
3) Take care of your health.
4) Educate yourself on your health plan and benefits providers.
5) Keep records of all communication with insurance companies.

"Insurers can make erroneous arguments with near impunity when it comes to the 112.8 million life and accidental death policies provided by companies and associations to their employees and members. That’s because of loopholes in a federal law intended to protect worker benefits."

That's a quote from a Bloomberg article about insurance company abuses of claimants under Accidental Death and Dismemberment insurance policies.

And what is the federal law in question?

Three guesses.

Read the whole thing.

No shame in struggling

He has a lot of people who love him and there's no shame in struggling because we all have, or will struggle eventually.

That's a response by Warden, EM, the brother of a man apparently (or at least potentially) pulled back from the brink of oblivion by the commenters over at Ace of Spades yesterday, as conveyed in turn by Warden. Their politics, as a rule, diverge from mine with some frequency, but that doesn't matter here. As a group they stepped up yesterday and tossed a lifeline.

As you might imagine, I see great deal of struggling in my law practice, dealing as I do with folks who've had critical insurance benefits denied when they needed them most. Disability benefit claimants and their families struggle to do without the financial lifeline they were led led to believe would be there. Health benefit claimants and their families struggle to persevere in the face of terrifying medical issues bereft of the peace of mind their insurance was supposed to provide. Pension claimants and their families face their dotage under the specter of impoverishment.

And some of them experience shame as a result of their struggles. In the main these are people who have worked hard for many years to earn -- earn -- the benefits which are ultimately denied to them. They are accustomed to, and have earned, self-sufficiency. And they are told when they seek the insurance benefits they have earned that they're goldbrickers, malingerers, frauds. And they must seek help, or suffer in silence.

There's no shortage of shame these days, albeit most often from things far from shame-worthy. Meanwhile there often seems to be no shame at all where it ought to be.

I'm looking at you, ERISA insurance industry.

I am proud of my ERISA clients, as they seek to recoup no more than what they have earned. They do not only help themselves: their struggles sometimes lead to tweaks in an unfair law which might ameliorate the suffering of others in the same way.

We make our meager efforts to help ERISA claimants get the benefit they've earned, and sometimes to facilitate their recoupment of the pride and peace of mind they've earned. Others struggle in a multitude of manners in other arenas. No one -- no one -- makes it through without struggling.

So whatever your struggles may be, there's no reason for shame on that account. Fight the good fight, whatever your fight may be.

Thanks to the folks at Ace of Spades, and to EM and Warden, who remind us all there's no shame in struggling.

BTW, the Ace of Spades Morons (their word, not mine) are very, very witty, and more entertaining commentary is nowhere to be found IMO. And yesterday they just might have saved a life.

"Many might be surprised to learn that defendant has no legal duty to make things right under those circumstances."

This was the observation of U.S. District Court Judge Barbara B. Crabb of the Western District of Wisconsin, in her decision in Kenseth v. Dean Health Plan,. Inc.:

Kenseth v. Dean Health Plans, Inc.

It comes as no surprise, of course, that "no legal duty" means "no duty under ERISA."

What are the circumstances Judge Crabb had in mind? Why, it's just an ERISA health insurer doing what ERISA insurers do: Dean "has refused to provide [Ms. Kenseth] any relief after lulling her into believing that she had coverage for an expensive operation, only to reverse course after the procedure was performed, leaving her with a stack of medical bills."

So Ms. Kenseth is told by Dean Health Care, before undergoing expensive surgery, that the surgery was a covered benefit of her ERISA health plan. Ms. Kenseth undergoes the surgery. Dean says oops! Did we say the surgery was covered? Our bad!

But, of course, not our problem.

Here's the skinny, as described by Judge Crabb:

In 1987, plaintiff had gastric bands placed around her stomach to help her lose weight. Years later she needed to have the bands removed after she began experiencing acid reflux that was damaging her esophagus. By that time, she had changed employers and had a different health plan through defendant. In 2005, she called defendant’s customer service number and was told that her health insurance would cover the procedure. However, after plaintiff underwent surgery, defendant denied plaintiff’s claim under a provision that precluded coverage for procedures related to obesity. The court of appeals concluded that these facts supported a claim for breach of fiduciary duty under ERISA:

The facts support a finding that Dean breached its fiduciary duty to Kenseth by providing her with a summary of her insurance benefits that was less than
clear as to coverage for her surgery, by inviting her to call its customer service
representative with questions about coverage but failing to inform her that whatever the customer service representative told her did not bind Dean, and by failing to advise her what alternative channel she could pursue in order to obtain a definitive determination of coverage in advance of her surgery.

So what Dean did was not only unfair and, to say the least, negligent, but its conduct also constituted a breach of the fiduciary duties an ERISA insurer is expected to fulfill. So what was the problem?

ERISA provides no remedy for the breach of fiduciary duty Dean committed, that's what. Judge Crabb describes the reasons for this finding at length in her opinion, and it is worth a read to see just how absurd the thicket is for those who have been defrauded by their ERISA insurance carriers.

I think Judge Crabb got it wrong, and there are arguments to be made that even under ERISA a remedy should have been available. But she's got plenty of company, probably the majority, in her evaluation of the issues. And I don't have "U.S. District Court Judge" in front of my name.

There's an old legal maxim that for every wrong there is a remedy. As with most other things the usual rules don't apply in an ERISA case. Sure, ERISA defines what Dean did as a wrong -- a breach of its fiduciary duty. But in the absence of any meaningful consequence what incentive does Dean have to live up to its fiduciary obligations?

None.

The Problem, redux

Around the first day of each month I'll be posting a reprise of the first post on this blog, which contains an overview of the Problem. It'll be updated and edited as we go along. But I'd like to have a summary of the Problem available frequently, hence the monthly repeat and update. So off we go...

ERISA is the Employee Retirement Income Security Act, and it is codified in Title 29 of the United States Code, starting with section 1001. It's federal law, enacted in 1974, and it was supposed to protect employees' rights in connection with their pension plans and welfare benefit plans (health, disability, life insurance, that sort of thing). But it doesn't. Quite the contrary.

Way, way to the contrary.

This blog is dedicated to the ERISA problem.

What is that problem? It mainly concerns those welfare benefit plans (ERISA is actually not a bad law with respect to pension plans). Pension plans is what they had in mind when they enacted it -- welfare benefit plans were an afterthought.

And it shows. If your insurance company wrongfully denies your claim, you might figure you can always take them to court. You can do that (usually), but when you get there you'll find things don't make any sense:

If you get your insurance coverage through your employment, then in virtually every case ERISA preempts state law (meaning it cancels it out, eradicates it, takes its place). But, having gutted state law relating to insurance disputes, it fails to provide any reasonable substitute. The remedies it provides (i.e. what you get if you win a lawsuit) are very, very stingy, and in the vast majority of cases a successful claimant is not made whole; not even close. And ERISA severely compromises your ability to secure even the scant remedies it does provide.

1. Remedies. ERISA limits the recovery you might get to the benefits which should have been provided in the first place, and an award on account of attorney fees in the court’s discretion. Example: you have your disability benefits wrongfully denied. As a result, you have no income, your credit rating is trashed, you lose your home and you are driven into bankruptcy. You file your ERISA suit and against the odds, you win. What do you get? The benefits they should have been paying you back when it might have done you some good. That's all (you might -- might -- get something on account of your attorney fees too).

The trashed credit, the lost home, the bankruptcy, the ruined life? Bupkis. ERISA does not allow for any recovery on account of these sorts of consequential damages -- none. And this applies even if the insurance company committed outright fraud when it denied your claim. I find it quite difficult to understand why the insurance industry, uniquely among all industries in America, needs to have immunity from liability for fraud if it is to offer its services at a reasonable price. Anyway, this concern goes beyond making people whole; it also directly impacts the behavior of insurance companies.

As of now we have a situation where the law tells insurers they face no meaningful consequences if they deny care improperly or even commit outright fraud. As one federal judge has commented, "if an HMO wrongly denies a participant's claim even in bad faith, the greatest cost it could face is being compelled to cover the procedure, the very cost it would have faced had it acted in good faith. Any rational HMO will recognize that if it acts in good faith, it will pay for far more procedures than if it acts otherwise, and punitive damages, which might otherwise guard against such profiteering, are no obstacle at all." Insurance companies, of course, are not charities, but corporations; their boards are subject to a fiduciary duty to maximize shareholder value. If it is possible to accomplish this by mistreating insureds, and ERISA says there is no meaningful consequence for that, then it follows that's what insurers will do.


2. Procedure. In ERISA litigation, courts have determined among other things that there is no right to a jury; that discovery (the pre-trial process where you obtain the other side's documents, take depositions and such) is to be significantly abridged; that the evidence which may be introduced at trial is generally limited to that which the insurer unilaterally decided to include within its claim file; and that, when the policy contains language vesting "discretion" in the insurer, if you prove the insurance company was wrong -- you lose. In order to win, you must prove the denial was "arbitrary and capricious" -- that is to say, ridiculous, absurd, unintelligible, crazy. And lo and behold, the insurance companies grant themselves "discretion" when they write their policies. In this way we treat insurance companies as if they were federal judges. But Learned Hand they are not.

The Republicans are gearing up to take a shot at repealing Obamacare. If that happens, then the least we could do is to ensure that those people who are fortunate enough to have insurance at least have some meaningful ability to enforce insurers' promises in court.

But never mind Obamacare; ERISA matters a lot anyway. If you get your insurance through your employment, then -- thanks to ERISA -- consider yourself to be uninsured. If by "insurance" you mean something like an enforceable promise by an insurance company that it will pay for what it says it will, what you have doesn't qualify. What you have is a piece of paper saying some company will pay your claim if it feels like it. You don't have insurance at all -- you only think you do.