Wil Dubois

Need help navigating life with diabetes? You can always Ask D'Mine!

Welcome again to  our weekly Q&A column, hosted by veteran type 1, diabetes author and community educator Wil Dubois. This week, Wil is ruminating on what kind of legal help we all might need with diabetes in the near future.

{Got your own questions? Email us at AskDMine@diabetesmine.com }

 

Jim, type 1 from California, asks: What type of lawyer would I need to look for if I need a (legitimate) “patient advocate"? I think, the way healthcare is going, having a lawyer on retainer may become as normal as having health insurance itself.

 

Wil@Ask D’Mine answers: Damn, I hope your vision of where healthcare is going is wrong. Insurance, pharmacies, and doctors are bad enough. I’d hate to have to write a check to a lawyer every month—especially one on retainer. For those of you who aren’t familiar with the term: used this way, a retainer is a regular fee paid to an attorney to have him (or her) at your beck and call whenever you need legal help. It’s not to be confused with the down payment-style retainer fee sometimes paid to an attorney who agrees to take on a specific case. 

You can think of having an attorney on retainer as being similar to having car insurance—it’s something you pay for all the time and only use now and again—only it’s a whole lot more expensive. 

But to answer your question: The kind of lawyer you would need is one that is licensed in your area of the country, has some experience with the type of cases you are expecting to encounter, and—most importantly—is someone you like. Hell, if you’re going to write a check every month to someone who won’t do anything most of the time, it really should be someone you feel good about. 

All of that said, however, I’m not really sure what sub-specialty of law makes the most sense as an attorney to serve as a patient advocate the way I think you are envisioning. But that didn’t stop me from trying to figure it out for you! Naturally, I started by using the internet. (Does anybody remember how we learned anything before the internet?)

And do you know what I found out?

I found out that searching the internet for anything about lawyers is a bad idea.

Because anytime you fire up a search engine with the word “lawyer” or “attorney” in the search bar, prepare to be bombarded with ads, both obvious ones, and the more subtle ones that pose as blog posts. Gone are the days when attorneys couldn’t advertise! 

My first thought was to simply search for “healthcare attorneys,” but this was a dead end. It turns out that healthcare attorneys are a sub-species… oops, I meant to say sub-specialty, that deals primarily with helping healthcare institutions like hospitals and nursing homes draft their polices and procedures.

I doubt that was what you hand in mind. But maybe so. Heck, if you can’t beat the Evil Empire, joining them is always a legitimate option.

But assuming that you were thinking you might need a legal superhero to help you get the benefits due you from your health insurance plan, I found that the best key phrase for this kind of legal help is, “health insurance denial lawyer,” which got me over two million search results.

If two million lawyers can’t get the job done, nobody can.

But all kidding aside, this might well be Mission Impossible, only without the exploding tape recorder, two million lawyers or not. Why? Because all a health insurance denial lawyer can really do is to ensure that your insurance company follows the rules, and those rules are written by the insurance companies themselves, so it’s rare that they aren’t followed. Nevermind that the insurance companies have more lawyers than customer service agents in the first place.

My friends, the deck is stacked against us. The plain and simple fact is that most denials of what we need are clearly within the language of our polices. In other words, while not fair, moral, or humane, most denials are legal. Even the ones that lead to people’s deaths. Therefore, the assistance of a lawyer is of dubious value. Partly it’s because success is unlikely, and partly because even if you succeed, the legal costs would exceed just paying for the health care benefit out of pocket.

Hell, even many law firms admit that hiring a lawyer makes little sense when fighting insurance companies, and instead, they advise navigating the appeal process without legal representation—unless you are denied on something crazy-expensive, like, say cancer treatment.

So what should you do? Most of the health insurance denial lawyers suggest enlisting your doc, the human resources folks at your employer, and your state Department of Insurance, and work your way up the appeal system one step at a time. 

Now it seemed to me that you wanted pro-active legal help, but no discussion of lawyers and health would be complete without at least mentioning the most common type of lawyer that stands up for patients in our legal system, and that’s the malpractice attorney, a specialist who, after the fact, sues doctors or other medical providers in cases in which a medical mistake was made. These lawyers, who often don’t have the best of reputations (think ambulance chasers), seek two kinds of money following a medical screw-up. First, they try to recover any expenses you incurred in getting the problem fixed. Then, they also try for some extra dinero for your inconvenience, some times called “pain and suffering.” And they may shoot for punitive damages, a fine of sorts that’s supposed to put other docs on notice of what can happen if they aren’t careful.

Of course no doc actually pays for these “damages” out of pocket. You and I do. That’s right. As the cost of malpractice insurance is a cost of doing businesses in our society, just like all other costs of doing business—licenses, rent, utilities, advertising—it’s worked into the prices we pay for healthcare. (And if you think that your health insurance is expensive, you should see what malpractice insurance costs!)

Now, another place where the legal profession shows up when it comes to health is in the area of discrimination based on a person’s health, and that’s a whole ‘nother kettle of fish. If you are facing any sort of discrimination because of your diabetes, your first stop should be the American Diabetes Association (ADA) Legal Assistance team. What types of discrimination have the ADA suits and ties fought against? Employment issues are a common one, as are discrimination cases involving schools. They helped out in my state when student blood glucose testing supplies were banned as part of a new weapons policy, which sounds too stupid and crazy to be true, but it was a real thing and a real threat to students with diabetes.

The ADA has also been instrumental in helping PWDs (people with diabetes) in commercial licensing issues, travel issues at airports, and has fought to ensure that we can test and shoot up in public places. They’ve even dealt with access issues to meds and testing supplies in prisons and jails, which is a good thing because you never know when you might end up in the slammer.

But ADA lawyers won’t represent individual PWDs; instead, they fight against broad-based issues that affect us all. But you should still call them if you are discriminated against, as you could be the tip of the iceberg on an issue than could affect dozens or hundreds of people. Still even if they won’t help you directly, if you need an attorney for an individual diabetes discrimination issue they can hook you up with a local lawyer from their extensive Attorney Advocacy Network.

But all that being said, the one thing they never do is take on issues involving insurance companies. Which to me, seems like the number one legal fight any of us with diabetes is likely to have. So short of having an attorney on retainer, what are the other options?

Well, it wouldn’t hurt to reach out to the Patient Advocate Foundation, a nation-wide non-profit that’s been helping out folks since 1996. While they have lawyers (who are involved in shaping health policy at the national and local level), the organization’s day-to-day focus is instead on one-on-one case management for “patients who have a diagnosis of a chronic, debilitating and/or life threatening disease.” They offer help in navigating health insurance, including “understanding insurance plan language, appeals process, second opinion options and clinical trials coverage.” They sound like a good group to keep in your hip pocket. Oh, they also have this tip sheet on when hiring an attorney makes sense.

So even they realize, sometimes you gotta call in the lawyers.

Personally, unlike Shakespeare, who wrote in Henry VI, “The first thing we do, let’s kill all the lawyers,” I think that there are many times when we need lawyers to help protect our interests, shape our legal polices, and help us right wrongs. 

But each of us having one on retainer? I hope it never comes to that. 

 

This is not a medical advice column. We are PWDs freely and openly sharing the wisdom of our collected experiences — our been-there-done-that knowledge from the trenches. But we are not MDs, RNs, NPs, PAs, CDEs, or partridges in pear trees. Bottom line: we are only a small part of your total prescription. You still need the professional advice, treatment, and care of a licensed medical professional.