Jessica Karmasek Jul. 21, 2015, 11:39am


OAKLAND, Calif. (Legal Newsline) - A California judge has ruled that health-care service provider Kaiser Foundation Health Plan Inc. cannot strictly deem excess skin removal surgeries a cosmetic procedure.

Alameda County Superior Court Judge Wynne S. Carvill wrote in his 60-page tentative ruling, filed Wednesday, that doctors could decide whether patients looking to have excess skin removed following bariatric weight loss surgery qualify for a referral.

“While not all members of the class may qualify for excess skin removal surgery and many who do may choose not to undergo such a procedure, they all have a common interest in being correctly advised as to the availability of coverage for such procedures and to have their physicians evaluating any request they might make do so under legally correct criteria,” Carvill wrote.

In her class action, plaintiff Wendy Gallimore, on behalf of herself and others similarly situated, alleged that Kaiser violated California law by refusing to cover the skin removal surgery.

The surgery is typically done in patients who lose a significant amount of weight after lap band, or stomach stapling, surgery.

According to her complaint, filed in the superior court in February 2012, Gallimore underwent bariatric surgery for treatment of morbid obesity. Following the surgery, she experienced massive weight loss and was left with large amounts of excess skin.

At that time, she requested that Kaiser authorize reconstructive surgery to remove the excess skin. Kaiser denied the request.

Gallimore argued her condition satisfied the requirements of state statute -- Health and Safety Code section 1367.63, enacted by the California Legislature in 1998.

The statute, according to the class-action complaint, was enacted because health plans were denying requests for reconstructive surgery on the basis that it was only medically necessary to restore or improve a bodily function, not restore a normal appearance -- even in cases where a physical abnormality was caused by trauma, disease or congenital defects.

Basically, the plans claimed such surgeries were “cosmetic.”

To remedy the problem, section 1367.63 made clear that health plans must cover surgeries to correct abnormal structures of the body caused by disease when the surgery would improve function or create a normal appearance to the extent possible.

Gallimore argued Kaiser has a “pattern and practice” of violating the statute by not covering such reconstructive surgeries, including her own.

“Kaiser systematically ignores both the functional impairment standard and the ‘normal appearance’ prongs of section 1367.63(c) and, in doing so, systematically violates the statute,” her lawyers wrote in the complaint.

Carvill rejected Kaiser’s argument that excess skin is not a disease; however, he declined to grant the plaintiffs’ requested declaratory relief.

The plaintiffs asked the court to rule that referral denials for each class member violated state law. The judge concluded that denial could be appropriate in some cases.

“The court agrees with Kaiser that it would be a considerable reach to find a statutory requirement that all patients with excess skin complaints be referred to a plastic surgeon under all circumstances,” Carvill wrote.

“There are a wide range of circumstances that may be presented by a patient with excess skin, and one cannot say that all of them need a consultation with a plastic surgeon.”

Click here to view the judge’s complete tentative ruling.

The trial, which began in March and was originally expected to last two weeks, ended up taking nearly a month. It was webcast live and recorded on Courtroom View Network.

Kaiser could not immediately be reached for comment on Carvill’s decision.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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