Killington Defeats Dail in TKO

I am sitting in the Sky Lounge at the Cincinnati airport where we will fly to Paris and then on to Bangalore where we will arrive at 12:30 am on March 16.  Right now it is 4:30 on March 14.  This was the most hectic week of my life (with the possible exceptions of the weeks leading up to WA and NC State Bar exams).  I worked approximately 75 hours this week, which is unremarkable for my colleagues at big law firms, but it is certainly outside my comfort level and also compiled the last bits of information and sent off the application needed to make Kei's green card permanent.

[JUST SO THIS IS CLEAR, "BUZZ KILLINGTON" IS A MADE UP PERSONA (actually borrowed from Family Guy) THAT I USE TO INDICATE THE TOTAL BUZZ KILL THAT ENSUES WHEN INSURANCE COMPANIES DICTATE WHAT HEALTH CARE INDIVIDUALS RECEIVE EVEN WHEN SUCH CARE CONTRADICTS THE OPINIONS OF MEDICAL PROFESSIONALS OR WHEN MEDICAL PROFESSIONALS AGREE THAT A DIFFERENT TREATMENT WOULD BE MORE BENEFICIAL TO THE ULTIMATE OUTCOME OF THE PATIENT]

So anyway... about that fight with so called Medical Director of the insurance company (that shall not be named), Buzz Killington; it was much less of a fight than it was a gruesome gang beating at the hands of capricious insurance medical policy and a shot in the back from one anonymous sniper - an "independent panel" physician paid by said unamed insurance company. 

I fought a clean fight armed with loads of scientifically supported factual information and expert opinion.  Really...the appeals process was like a part time job for the better part of 7 months.   I compiled over 300 pages of research (collected over a period of that past 2 years), which included articles from the most authoritative peer-reviewed medical journals in the field of spine surgery.  I actually had to pay for several of these articles.  What did these articles and studies have to say about the efficacy of ADR over fusion?  Only that ADR was superior to fusion in nearly every measure including a significantly lower re-operation rate, significantly better range of motion, lower complication rate, better patient outcome scores, and shorter recovery time.  Also, several studies I presented showed that fusion surgery results in significant and accelerated damage to adjacent discs in up to 30% of patients who receive fusion surgeries, which may result in more pain and more surgery later on down the road for those folks - a phenomenon that is intended to be avoided by the preserved motion of artificial disc replacement.

In addition to the articles and studies, I presented three letters from three different well respected spine surgeons I had visited who stated unequivocally that ADR surgery over fusion surgery would be the preferred treatment in my case considering my relative youth and active lifestyle (pre-chicken neck).  I actually visited 5 different surgeons in the US -- including the world renown Fabien Bitan in NYC who was a pretty cool guy and very into windsurfing apparently -- who all essentially came to the same conclusion; I should go with ADR and not fusion, but that insurance coverage would be a challenge since the disc replacement technology was relatively new in the states despite the fact that the device (prodisc-c) is FDA approved and further despite the fact that it has been in use in Europe for around 20 years.  Insurers are reluctant to cover new treatments particularly when they are more expensive (the ADR procedure, if performed in the states, is slightly more expensive that a fusion).  Just ask any cancer or HIV patient.

In addition to the compelling facts and expert opinions, I presented evidence that the ADR procedure I was proposing to be performed by Dr. Bertagnoli in Germany (possibly the most experienced ADR surgeon in the world) would actually be more cost effective in the short term (only because the medical costs in Germany are much more reasonable than in the U.S.) and in the long term, actually saving my insurer money.  The total costs of a 2 level fusion surgery in the states would run between $70K - $100K, whereas 2 level ADR in Germany would cost around $40K - $60K, not to mention the likely reduced risk of further surgery or other treatment of adjacent disc disease that can be caused by fusion, since this risk is reduced to some extent by ADR (this is a bit of a controversial statement because of the longevity issue addressed in the next paragraph).  By the way, my health plan apparently covers me anywhere in the world through their international network, so Germany did not seem like such a wacky idea -- surely not as wacky an idea to me as permanently fusing three of my vertebrae together. 

I will concede that the one weakness on my side is the longevity issue.  Even though there are over 10,000 humans walking around on the earth right now who have received artificial disc implants (cervical and lumbar) over the past 20  years, I was only able to find well controlled peer reviewed studies that had been conducted within the last 10 years and most of those only did a 2 to 5 year follow up.  So theoretically there could be a huge problem with artificial discs popping out or some other gruesome complication in year 15 or whatever.  Of course, there is no evidence to support this.  As I said, there has been over 10,000 ADR surgeries performed in the last 20 years and so far, no mass reports of ADR failures, or other major complications.   I would think that if there was a serious issue, this would at least make the news or even medical literature.
 Actually, I did present literature that focused on the distinction between disc replacements and knee/hip replacements.  While knee and hip replacements are beautiful things if you need one, they do tend to fail after a number of years, requiring an additional operation.  My insurance company expressed this concern (and I shared their concern prior to my research).  The literature I presented asserts that each single disc within the spine is responsible for bearing much less weight, and is responsible for facilitating much less motion than a hip joint or a knee joint, so the likelihood of totally wearing out in 10-15 years like a hip or a knee replacement is not very high at all.  Additionally even the newer materials and designs in hip and knee replacements are believed to have a durability of around 25 years.  Obviously, only time will tell with any medical device.  But, with ADR, if the thing fails there is a solution:  revision surgery in which the implant can be safely removed and either replaced with a new device (which would presumably be even better if this were to occur ten years down the road), or that level could be fused.  With a fusion surgery, there is no going back.  Fusion is permanent.

Anyway, in short I was given the opportunity to present my case through a 2 level appeals process, where the information I presented was roundly ignored and where Killington and Co. proceeded to give me what you might call the ol' business.

At a Level I appeal, which gives the term "sham" a bad name, all of the technical information I compiled regarding neurosurgery of the spine was reviewed by a pediatrician - a fucking pediatrician.  After the Level I denial, by Dr. Doolittle,  I requested a Level II appeal where the insurance company hires (via a 3rd party contract agency) an anonymous physician who supposedly has similar credentials as the doctor I have proposed to perform my surgery (fat chance that this douche nozzle could even hold a conversation about artificial disc replacement with Dr. Bertagnoli or even with me for that matter).  The review panel doctor was called "Dr. A".    Despite the attempts by Killington and Co. to give the appearance of independent review, I remain unconvinced since the identity of Dr. A was kept anonymous so I had no way  to verify his credentials or to inquire about potential conflicts of interests.  In fact, while my insurer's medical policy explicitly states that the patient has the right to ask questions of the review panel at the Level II appeal, when I tried to ask questions during our teleconference  review, the appeals coordinator told me I was not allowed to ask anything.  I was shocked, but at the same time, I didn't want to piss Dr. A off.  After all, he seemed like he had other stuff to do (he rudely made this point during the call), so I actually thought maybe if I let him off easy, he would bless me with a reasonable decision.  No such luck --  I received Dr. A's denial a few days later.   In that letter, he essentially made stuff up and contradicted many of the established peer review findings that were undisputed in the literature, while himself providing no reference to any studies, peer reviewed literature, or even anecdotal experience.  To say I was frustrated would be the understatement of the century.  At the end of this now 3rd rejection letter, which was again signed by the hated Buzz Killington, the insurance company essentially told me I should have a fusion, which is covered under the policy. 

Thanks, but not thanks on that bridge to nowhere.

So as a lawyer, you may ask why didn't I sue.  Well I was surely angry enough to, but my decision to forgo a lawsuit was very much a practical decision.  Filing a federal lawsuit under ERISA would take at least another year out of my life, another year that my nerves would be getting smashed, and increasing the likelihood that they would not fully recover from surgery, and frankly I was tired and defeated -- handily defeated.  Also, at the end of a year or more of federal litigating, I gave myself less than a 20% chance of success.  ERISA is not exactly known as a patient friendly law, hence the need for healthcare reform.

This would be a good place to remind you that after having my ass throughly kicked by Killington and Co., I still pay these guys almost $400 a month for health care premiums for me and my wife.  You have to respect the balls on these guys.

So the decision before me was to either get three vertebrae fused together, which my insurance company would pay for, or pay out of pocket for disc replacement.  As I have said before, I have no interest in fusing my spine just because insurance executives think it is what I should do.  Call me crazy, but I think medical professionals should guide decisions regarding medical treatment; not insurance executives.  So the decision to pay out of pocket for ADR after accepting the blistering defeat at the hands Buzz Killington was a no-brainer.  The tricky part was where to do it so that I can actually afford.  I knew where that place was certainly NOT - in the U.S, I would be looking at around $100,000.00 including the surgery and hospital costs.  YIKES!!  In Germany with the wonderful Dr. Bertagnoli, the cost would be more like $40K to $60K, but that was still way too rich for my blood.

I began to research medical tourism, and one hospital in India kept coming up in all of the literature that I found including articles in the US News and World Report, Newsweek and the Economist (you know....all of those publications that Sarah Palin reads) - Wockhardt Hospital in Bangalore (now Fortis Hospital).  After a number of hours of research and correspondence with former patients, that seemed like a good choice, so I sent my MRI films and waited for a response.  More on this in the next post.