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State worker Kenneth Dale Low died of heart problems last year, and now his widow who lives in Jennings County is suing insurer Anthem Blue Cross Blue Shield in the 55-year-old man’s death.
Lisa Low, the man’s widow, has filed a wrongful death lawsuit against Anthem in Marion County Superior Court, claiming the company refused to pay for a surgical procedure that would have kept her husband’s heart beating regularly and saved his life. Anthem’s attorneys said the company did nothing wrong.
At issue is whether Anthem should have allowed doctors to insert a pacemaker — or implantable cardioverter defibrillator — under Kenneth Low’s skin to stimulate his heart rate as needed or send an electric shock to the muscle whenever it got dangerously out of rhythm.
One of Low’s doctors, cardiologist Dr. John S. Strobel of Bloomington, is quoted in court records saying it’s his “strongly held belief” that Anthem’s denial of care over nearly six months resulted in the rural North Vernon man’s Feb. 11, 2012, death.
“He’d still be alive today if Anthem had allowed (doctors) to proceed with the implant when originally recommended,” Strobel is quoted as saying in the Low family’s lawsuit. Columbus-based attorneys Patrick “Woody” Harrison and Bill Stone have taken on the case, seeking damages for the man’s widow.
“Kenneth Low died from failure to allow a timely implant,” the lawsuit contends. Lisa Low’s attorneys want a trial by jury and unspecified monetary damages.
In a response to the lawsuit filed by Anthem’s attorneys in late October, the insurer acknowledges that it denied pre-authorization for surgery in letters dated Sept. 2, 2011; Nov. 9, 2011; and Dec. 20, 2011.
But the insurer denies that its actions caused Kenneth Low’s death and says everything it did was “in accordance with the health benefits” in effect at the time.
Lisa Low’s lawsuit says one of her husband’s doctors — Dr. Samantha Lucas — originally wanted to outfit Kenneth Low with a pacemaker on Aug. 30, 2011, but Anthem wouldn’t pay for the procedure, calling it “experimental” in a patient with Low’s symptoms.
The court filing says Low suffered from cardiomyopathy, a weakening of his heart muscle, and congestive heart failure.
Again, in early November 2011, Strobel recommended surgery, but Anthem denied coverage, the lawsuit states. The same thing happened in December after an appeal by Lucas, according to the suit.
Finally, on Feb. 3, 2012, Anthem shifted its opinion and said it would pay for the surgery, but Low’s widow contends in her court filings that the change of heart came too late. The procedure was scheduled to take place Feb. 14, 2012, but Low died three days before then.
In its response, Anthem agrees that it allowed “certain benefits” under Low’s policy on Feb. 3, but says any damages linked to Low’s eventual death were caused by his own “actions or inactions” or those of his physicians or others not party to the family’s lawsuit. “Anthem didn’t breach its duties,” the insurer said in its filing last week.
Kandi Hidde, an Indianapolis-based lawyer representing Anthem, declined to discuss the case further when contacted by phone.
Wrongful-death lawsuits against insurers have become more common as health care costs rise and the insurance industry plays a bigger role in determining proper medical treatment, said William Sage, a physician and member of the University of Texas at Austin law school faculty. Sage is an expert in health law and professional responsibility.
In many cases, though, it’s difficult for families to win large judgments in wrongful-death cases because the federal law covering employee benefits — the Employee Retirement Income Security Act of 1974 — generally limits how much can be collected, if the patient worked for a private company. Private-sector patients can sue to get lost benefits and to enforce an insurer’s fiduciary duties, but judgments are mostly limited to the cost of a procedure and the lost employee benefit, not pain, suffering and other add-on penalties, Sage said.
But since Kenneth Low was a state employee, it does broaden how much money his widow could collect if the family proves its case, Sage said. The rules of ERISA won’t apply.
Sage said that doesn’t mean winning a wrongful-death suit becomes easy. A lot depends on how Low’s insurance policy with Anthem was written, he said, and the insurer has a right to review care and make sure medical decisions were appropriate.
Over the past 20 years, insurers, doctors and patients have faced off more frequently in court over what is and isn’t the right kind of medical care, Sage said.
“These are difficult issues,” Sage added. “In general, we have to deal with the fact that the companies who pay for health care have become increasingly involved with how that health care is delivered. And that brings with it the potential for liability.”
Who wins the Low case — if it comes to trial — will depend on the facts, Low’s relationship with his doctors and key medical details, Sage said.
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