Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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Dane v. UnitedHealthcare Insurance Co.

Court: US Court of Appeals for the Second Circuit

Docket: 19-2330

Opinion Date: September 10, 2020

Judge: Chin

Areas of Law: Consumer Law, Health Law

The Second Circuit affirmed the district court's dismissal, based on Federal Rule of Civil Procedure 12(b)(6), of plaintiff's amended complaint alleging that defendants violated Connecticut and District of Columbia law in entering into a licensing agreement with respect to a group plan for Medicare supplement insurance. Plaintiff claimed that defendants' royalty fee arrangement constituted an unlawful "premium rebate" in violation of Connecticut and District of Columbia anti-rebating insurance laws. The court held that plaintiff did not state an unlawful rebate claim under Connecticut or D.C. law because he failed to plausibly allege any ascertainable loss or injury as a result of his purchase of Medicare supplement insurance ("Medigap") or the AARP royalty fee. Likewise, the court held that plaintiff failed to plausibly allege a cognizable claim based on his purchase of Medigap insurance through the AARP-UnitedHealthcare plan. In regard to plaintiff's consumer protection claims, he failed to show any concrete and particularized injury because he paid only the regulator-approved rate and received the Medigap insurance he contracted for. Finally, plaintiff failed to plausibly allege the requisite elements for his remaining common law claims and his statutory theft claim under Connecticut law.

Greenbrier Hospital, LLC v. Azar

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30331

Opinion Date: September 9, 2020

Judge: James C. Ho

Areas of Law: Government & Administrative Law, Health Law

Federal regulations establish a compensation formula for the payment of certain health care providers—a formula that changes once a year. However, each formula takes effect on January 1 and runs until January 1 of the following year. On January 1, two competing formulas purport to apply, making it unclear which one governs: the new one, or the one from the preceding year. The Fifth Circuit affirmed the district court's grant of summary judgment to the government, holding that the context of the rule makes clear that the court should construe the 2005 rule to give effect to the new formula, and not the formula from the preceding year, when presented with a cost report that begins on January 1.

MSP Recovery Claims, Series LLC v. Ace American Insurance Co.

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 18-12139, 18-12149, 18-13049, 18-13312

Opinion Date: September 4, 2020

Judge: John M. Walker

Areas of Law: Health Law, Insurance Law

Plaintiffs, collection agencies, appealed the district court's dismissals with prejudice of their claims against defendants, seeking double damages against defendants under the Medicare Secondary Payer Act and alleging that actors within the Medicare Advantage system, including Medicare Advantage Organizations (MAOs) and various "downstream actors" that contracted with MAOs, had assigned their Medicare Secondary Payer Act claims to plaintiffs for collection. The Eleventh Circuit vacated the dismissals of plaintiffs' claims based on assignments from downstream actors, holding that the district court erred by narrowly construing 42 U.S.C. 1395y(b)(3)(A) to categorically exclude claims by downstream actors. The court explained that both the text and the objective of section 1395y(b)(3)(A) support allowing downstream actors to bring suit, or assign their right to bring suit, against primary payers. Therefore, the court remanded these claims for further proceedings. The court found that the district court erred insofar as it dismissed MSPRC's HFAP claims with prejudice, and ordered that the district court's dismissal be without prejudice. The court also found that the district court erred in dismissing MSPA's FHCP and IMC claims based on the purported cancellation and validity of MSPA's assignments. Finally, defendants' alternative claims are without merit. The court vacated the dismissal of plaintiffs' remaining claims in case number 18-12149. In case number 18-13049, the court affirmed the dismissal of plaintiffs' claims but modified the dismissal of these claims to be without prejudice.

Ex parte Blue Cross & Blue Shield of Alabama.

Court: Supreme Court of Alabama

Docket: 1190232

Opinion Date: September 4, 2020

Judge: Stewart

Areas of Law: Civil Procedure, Health Law, Insurance Law

After her claim for coverage under the Public Education Employees' Health Insurance Plan ("PEEHIP") was denied, Marilyn Player sued Blue Cross and Blue Shield of Alabama ("BCBS") at the Macon Circuit Court ("the trial court") asserting claims of breach of contract and bad faith. BCBS sought a writ of mandamus to direct the trial court to transfer Player's case to the Montgomery Circuit Court pursuant to section 16-25A-7(e), Ala. Code 1975. A complaint seeking judicial review of a decision of a PEEHIP claims administrator could be heard only by the Montgomery Circuit Court. Player argued that 16-25A-7(e) did not apply to her complaint because her claims, she contended, did not constitute an action for a dispute over the denial of benefits and her complaint could not be characterized as an appeal of any administrative action. Rather, the breach-of-contract and bad-faith claims, Player argued, were regular tort claims recognized by the common law of Alabama and therefore did not fall within the purview of 16-25A-7(e). The Alabama Supreme Court was not persuaded: "Player cannot avoid the legislature's exclusive-venue provision by recasting her claims using artful labels." The trial court exceeded its discretion in denying BCBS's motion for a change of venue from Macon County to Montgomery County. Despite Player's attempt to cast the issues in her complaint as regular tort claims, Player's breach-of-contract and bad-faith claims are, in essence, disputes over a final decision allegedly made by BCBS regarding Player's insulin medication. Section 16-25A-7(e) controlled in this action; therefore, venue was proper in Montgomery County. The Supreme Court granted the petition and issued the writ. The trial court was ordered to transfer the action to the Montgomery Circuit Court.

Ex parte Gulf Health Hospitals, Inc., d/b/a Thomas Hospital.

Court: Supreme Court of Alabama

Docket: 1180596

Opinion Date: September 4, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

Deborah Faison ("Deborah") died from cardiac arrest while she was a patient at Thomas Hospital in Fairhope, Alabama. Her husband Larry Faison ("Faison") then sued Gulf Health Hospitals, Inc. ("Gulf Health"), which owned and operated the hospital. Over a year after filing suit, Faison was allowed to amend his complaint by making additional factual allegations to support his claims. Gulf Health petitioned the Alabama Supreme Court for a writ of mandamus to direct the trial court to strike the amended complaint. Gulf Health argued the the amendment was untimely and without good cause. The Supreme Court determined Gulf Health did not meet its burden of showing that a postjudgment appeal was an inadequate remedy. Therefore, petition was denied.

Burchell v. Faculty Physicians & Surgeons etc.

Court: California Courts of Appeal

Docket: E071146(Fourth Appellate District)

Opinion Date: September 10, 2020

Judge: Raphael

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

In 2014, plaintiff-respondent Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. His surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected, believing the mass was malignant. Without consulting either Burchell (who was under anesthesia) or the person Burchell had designated as his medical proxy, Barker removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. Burchell suffered serious side effects, some of which are permanent and irreversible. The mass turned out to be benign. Burchell brought suit, alleging professional negligence and medical battery. A jury returned a verdict for Burchell on both causes of action, awarding him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages against Dr. Barker and defendant-appellant Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (FPS). On appeal, FPS argued the award of noneconomic damages should have been reduced to the $250,000 limit on such damages in “any action for injury against a health care provider based on professional negligence” provided by Civil Code section 3333.2(a), part of the Medical Injury Compensation Reform Act of 1975 (MICRA). In the alternative, FPS argued the award of noneconomic damages was excessive and the product of improper argument by Burchell’s counsel, so the Court of Appeal should reverse and remand for new trial unless Burchell accepts a reduction of the award to an amount we deem reasonable. Finally, FPS argued Burchell’s offer to compromise pursuant to Code of Civil Procedure section 998 was invalid, so the award of expert witness fees and prejudgment interest should also be reversed. After review, the Court of Appeal rejected FPS' first two arguments, but concurred that Burchell’s section 998 offer was invalid, and therefore reversed the award of expert witness fees and prejudgment interest.

State Farm v. Spine Care Delaware

Court: Delaware Supreme Court

Docket: 469, 2019

Opinion Date: September 9, 2020

Judge: Karen L. Valihura

Areas of Law: Civil Procedure, Health Law, Insurance Law

A superior court determined State Farm Mutual Auto Insurance Company and State Farm Fire and Casualty Company’s (collectively, “State Farm”) payment practices with Spine Care Delaware, LLC (“SCD”) for medical fees incurred by its Personal Injury Protection (“PIP”) insureds in connection with covered multi-injection spine procedures contravened 21 Del. C. 2118(a)(2). When State Farm received SCD’s charges for a multi-injection procedure performed on one of its PIP insureds, it unilaterally applied a Multiple Payment Reduction (“MPR”) to the charges for injections after the first injection in a manner consistent with Medicare guidelines, paying SCD less than what it charged. SCD sought a declaration that State Farm's application of its MPRs was inconsistent with section 2118(a)(2)’s requirement of reasonable compensation for covered medical expenses, and sought a declaration that State Farm had to pay SCD any reasonable amount charged for PIP-related medical expenses, without applying MPRs. Both parties then moved for summary judgment. The superior court held that State Farm failed to show that the MPR reductions correlated to reasonable charges for the multiple-injection treatments, and thus contravened section 2118(a)(2). On appeal, State Farm contended the superior court incorrectly placed the burden of proof on State Farm to demonstrate that its application of MPRs was reasonable, and that SCD failed to meet its burden of demonstrating that State Farm’s application of MPRs was a failure to pay reasonable and necessary expenses under the statute. Alternatively, State Farm argued that even if it had the burden of proof, it satisfied that burden. The Delaware Supreme Court agreed with State Farm's first premise, that the superior court erred in assigning State Farm the burden of proof. Judgment was reversed and the matter remanded for further proceedings.