By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
It was after the first surgery that Washburn learned her insurer, Blue Cross and Blue Shield (BCBS) of Minnesota, wasn't willing to pay for the procedure, which it called "experimental." Her husband, a pharmacist in Long Prairie, contacted his attorney, who referred him to Hatch. The pharmacist remembered how, as commerce commissioner, Hatch had prevented a local monopoly by working to get a second bank open in Long Prairie, and figured he was the kind of lawyer who didn't mind taking on the big guys.
The first time the Washburns met with Hatch at his office in Minneapolis, Eva Claire was bloated from the steroids she had been taking, and her hemoglobin was so low that she was having difficulty getting oxygen to her brain. She felt overwhelmed by the challenges ahead--not only the medical ordeal, but the need to come up with tens of thousands of dollars to pay for it. But from that very first meeting, she says she knew her connection with Hatch was "a blessing."
In researching the case, Hatch learned that the procedure Washburn sought was covered by a number of other insurers, including BCBS plans in other states. He filed a motion in Stearns County District Court, asking for a temporary injunction ordering BCBS to pay for the treatment; after a 30-minute hearing, the judge agreed. Seven years later, with her myeloma still in remission, Washburn works out three times a week at her local health club.
In news reports at the time, Blue Cross and Blue Shield representatives expressed "empathy" for Washburn and said the case was simply a contract dispute. The company also pointed to its funding of research on bone marrow transplants as a treatment for breast cancer. Representatives of Blue Cross and Blue Shield and several other managed-care organizations declined to comment for this story.
Following the Washburn case, other patients in similar straits began contacting Hatch's office. Hatch, who had charged the couple nearly $10,000 for his services, decided to cap his fees for such cases at $4,000--just enough, he says, to cover expenses--and to forgo charges if a client with a legitimate claim against her insurer was unable to pay. (The costs could be absorbed because Hatch was doing a lucrative business handling complex corporate trials.)
Slowly, steadily, a crusade began to take shape. Every so often, the normal operation of Hatch's firm would be disrupted by a phone call or a visit from someone with a deadly disease and a recalcitrant insurer. Four out of five were women, and many suffered from breast cancer and needed a bone marrow transplant. Others had more exotic illnesses: Kathleen Barlage, whose case Hatch took to court in 1997, was afflicted with scleroderma, a rare autoimmune disease that causes the skin to harden and vital organs to fail. Her extremities began to curl and become rigid and her kidneys required dialysis. Her insurer, HealthPartners, claimed the only known treatment was morphine to ease Barlage's pain until she died. A doctor recommended a stem-cell transplant, an experimental procedure that had been used in Europe, but HealthPartners said the treatment was untested and thus not covered. Ruling in Barlage's favor, a Hennepin County District Court judge said that under HealthPartners' standard, none of the plan's enrollees would ever "be the first person saved" by a new treatment. Barlage has since received the transplants and says she is leading an active, if still painful, life.
"Most often, when we first met with a patient, it would be very emotional, with a lot of crying and anguish," says Lori Swanson, the member of Hatch's firm who most often worked with him on health-insurance cases. "The patient brings a copy of her health-care policy. Most of the time, she has been told she will be dead within a year if she doesn't get treatment, but the insurer has denied coverage. Many just want to live long enough to see their children graduate from high school--not getting to do that is the single biggest fear among parents.
"The patient usually needs help in a hurry, because there is a two-or-three-week window when she can qualify as a candidate for treatment. After our meeting, the first thing we do is talk to the doc and find out about treatment, look at the life expectancy, and then look at the policy to see what coverage they have. Sometimes the insurer has simply denied legitimate coverage. Other times we see that no notice of a change in the policy has been given, which is required by state law.
"After that, as much as possible, we drop every other case we have pending and research the medical condition day and night so we can put together a brief and go into court as soon as possible. The pressure is enormous. A very emotional patient has extremely high expectations of you; it is all riding on whether you can be good enough to get what the patient needs. The day you first meet the patient to the day you go to court, you are probably talking to the patient a minimum of six times a day; sometimes a lot more, like every hour. Often the family is desperate to help, and Mike and I will have them running around getting an affidavit delivered to a doctor or something.