Surgery Patients|Take Kaiser to Trial

OAKLAND, Calif. (CN) - A class of patients who claim Kaiser refuses to cover reconstructive surgery after procedures for morbid obesity took their case to trial in Alameda County Court on Monday.

Lead plaintiff Wendy Gallimore, a teacher covered by the Kaiser Foundation Health Plan, claimed that the plan systematically refuses to pay for removal of excess skin after bariatric surgery, such as gastric bypass, in violation of a provision of the Reconstructive Surgery Law.

The statute requires health care plans to cover reconstructive surgery performed "to correct or repair abnormal structures of the body" necessary "to improve function" and "to create a normal appearance."

Gallimore's attorney Robert Gianelli argued in opening statements that the class likely contains 10,000 patients. Bariatric surgery is frequently covered and provided by Kaiser, he said, because the patients' health benefits ultimately reduce Kaiser's costs.

Gianelli said that Kaiser failed to assess the excess skin remaining after bariatric surgery on a case-by-case basis to determine whether the skin met the statute's "function" and "normal appearance" requirements. Instead, he said, the health plan writes off too many cases as mere cosmetic concerns.

He claimed that 75 to 93 percent of bariatric surgery patients say they need the reconstructive surgery afterward.

"This is not a once-in-a-while surgery, it's across the board," he said.

Gianelli said that Gallimore was not suing the medical groups that provide the surgery because the groups are a third party. As a health plan, he said, it is Kaiser's "duty to provide statutory coverage."

Mark Palley, representing Kaiser, argued that the statute was not written to apply to cases such as Gallimore's, but to repair abnormalities caused by congenital defects, diseases or accidents.

He claimed that the plaintiffs willfully ignore the causation behind the reconstructive surgeries at issue and want to replace doctors' clinical judgments with "iron rules."

"This is socializing the costs of cosmetic surgery, and the statute doesn't require it," Palley said.

"It is cruel to treat a surgery to give someone with a congenital defect a normal appearance the same as tummy tucks or face lifts."

Judge Wynne Carvill is presiding at the trial, which is expected to last two weeks.

Gianelli is with Gianelli & Morris in Los Angeles; Palley with Marion's Inn in Oakland.

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