OTLA Trial Lawyer Spring 2021

12 Trial Lawyer • Spring 2021 Clinton Tapper By Clinton Tapper OTLA Guardian I t was the morning of her father’s fu- neral when Valerie Kruesi began to feel ill. She awoke with an upset stomach, but she ignored it. The day had to go ahead, and she was determined to give her dad a proper service. By the time she said goodbye to the last mourner, what had started as mild discomfort had grown into an intense stabbing pain in her abdo- men. Nearly doubled over she rushed to the emergency room. At the ER she was diagnosed with an imprisoned hernia, a condition wherein a tear in the abdomi- nal wall allows the bowel or intestine to become trapped. The condition pro- duces extreme pain and is fatal if not surgically remedied within 48 hours. Kruesi was taken immediately into sur- gery where the doctors were able to release the imprisoned bowel and save her life. A few days later, a bill for about $36,000 arrived in Kruesi’s mailbox. Along with the bill was an estimate of benefits from her insurance carrier show- ing non-payment of all hospital and surgical expenses. Confused, Kruesi called her health insurer. After a series of calls that left her more confused and frustrated, she eventually got through to a higher-level claim manager. The manager explained that after a review of her medical history, the carrier discovered she had had a gastric bypass surgery in 2003. Kruesi was surprised her insurer had pulled her medical records, however, it is common for life and health insurance companies to conduct exten- sive reviews of their insured’s medical history after a loss. The manager further explained her insurance policy excluded coverage for weight loss surgeries, includ- ing complications arising from such surgeries. The manager explained that, based on the medical records review, the insurer was taking the position the hernia was a side effect from the weight loss surgery, and they would not pay for it. A few days later, she received a denial letter reiterating that position. In my first call with her, Kruesi was deeply upset. She did not understand how her insurer could deny her claim based on a surgery 17 years ago, and she did not have the money to pay a $36,000 bill. She was afraid of what that bill meant for the future of her family and angry about the treatment she had re- ceived from her carrier. We started by carefully reviewing the letter denying the claims. There are two different sets of laws controlling health claims in Oregon, and they have different impacts on how a claim can or should be pursued. The language in the denial letters will usually tell whether the claim is governed by Oregon law or the Em- ployee Retirement Income Security Act (ERISA), the federal statutes that govern all benefits provided by an employer to an employee. Health benefits Individually purchased policies, gov- ernment or non-profit employer policies When Health Insurance Claims Are Denied