Bench Trial Concludes In Case Over Coverage For Excess Skin Removal (Watch The Video)


ALAMEDA, Calif. — (Mealey’s)The bench trial in a class suit brought by members accusing Kaiser Foundation Health Plan Inc. of violating California Health and Safety Code Section 1367.63 by denying all requests for surgery to remove excess skin following bariatric surgery without first having a physician review each request concluded April 10, but not without Kaiser making a nonsuit motion and the judge chiding both sides for failing to present traditional opening arguments and then dragging out the trial (Wendy Gallimore, et al. v. Kaiser Foundation Health Plan, Inc., et al., No. RG12616206, Calif. Super., Alameda Co.). 

(Watch a video excerpt of the trial concluding.) 

Alameda County, Calif., Superior Court Judge Wynn Carvill told the parties that trial, which began March 16, should have been half as long.  He said they spent too much time on topics like the surgical guidelines and the date of adoption even though those issues were not contested.  

What both sides failed to present, he said, was a clear path for him to follow when they presented their openings.  He set the deadlines for post-trial briefs for May 12 and 27.  He said he would set no page limit for the briefs but asked both sides to create a clear path. 

 Had both sides presented classic opening statements, “[the plaintiffs] would have given me a road map and Kaiser would have given me their contrary road map,” Judge Carvill stated.  “And I didn’t get that.  I didn’t get that classic opening statement road map of how these witnesses fit together, what the exhibits would show as to what the practice was at each facility.  You both went immediately to your argument, your broad brush argument and I’ve been trying to piece that together through this trial.  And what I don’t want is to be left with the post-trial briefing and the same problem.  That’s my issue.” 

Judge Carvill also gave Kaiser until May 12 to file a brief, if it wishes, to augment its nonsuit motion. 

Health Care Plan 

Kaiser is a prepaid health care service plan licensed by the Department of Managed Health Care.  It maintains facilities through which members may obtain medical services.  To access the services, a member must make an appointment at a Kaiser facility in the specified area and follow the diagnosis and course of treatment prescribed by the primary care physician.  If a member desires a specialist, a referral is required from the primary care physician. 

In 1998, the California Legislature enacted Section 1367.63, which provides in part that every health care service plan shall cover reconstructive surgery, defined as a “surgery performed to correct or repair abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease to do either of the following:  (1) To improve function.  (2) To create a normal appearance, to the extent possible.” 

Class Complaint 

Wendy Gallimore filed a class complaint against Kaiser in the Superior Court on Feb. 7, 2012, alleging that the health care plan “has a pattern and practice of systemically violating the statute by refusing to cover reconstructive surgery to correct or repair abnormal structures of the body to create a normal appearance to the extent possible.”  In addition, Gallimore alleges that “Kaiser has a pattern and practice of systematically denying request for reconstructive surgery for excess skin following bariatric surgery for morbid obesity.” 

Gallimore’s own request for surgery following “massive” weight loss after her bariatric surgery was denied by Kaiser.  She alleged that the condition satisfied the requirements of the statute because her proposed surgery was for a repair of “abnormal structures of the body caused by . . . disease.”  Kaiser refused to authorize the surgery, claiming that it was cosmetic.  However, she alleges that Kaiser never considered whether the surgery would improve function or create a normal appearance to the extent possible under Section 1367.63(c), subsections (1) to (2). 

Gallimore alleges violation of California Business and Professions Code Section 17200. 

Robert Gianelli and Joshua Davis of Gianelli & Morris in Los Angeles represent Gallimore.  Mark Palley and Brian Lee of Marion’s Inn LLP in Oakland, Calif., represent Kaiser.

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