Interview With Conal Doyle: Trial Lawyer and Advocate

Conal Doyle is an award-winning personal injury and insurance coverage attorney located in Beverly Hills, California, who has now settled two class action lawsuits in just over two years involving United Healthcare and Anthem Inc. He has had a transtibial amputation for fifty years and has an encyclopedic knowledge of prosthetics and all issues facing the O&P patient population. While he is not the only attorney making an impact on the profession, Doyle’s work has been groundbreaking in impact litigation involving both individual and class action cases. He has obtained numerous multimillion-dollar recoveries in personal injury and medical malpractice cases, as well as class action lawsuits against major payers for unfair policies and coverage denials of prosthetic services. He is also one of the few people who have an amputation to have argued before the United States Supreme Court. I wanted to know more about the lawsuits and the person who litigated them. Read on to see what I learned from him. The conversation is edited for clarity. With so many examples of discriminatory and unfair denials in the prosthetic industry, why aren’t there more lawsuits and more attorneys filing complaints? The short answer is that these cases are complex, difficult, time-consuming, expensive, and often not profitable. So, it is no wonder that I am the only attorney that I know of who devotes a significant percentage of their practice to representing amputees in insurance cases. The first hurdle is to determine whether state or federal law applies. The answer to this question depends on the type of health plan involved. Most plans are governed by a federal law called ERISA [Employee Retirement Income Security Act of 1974], and these are typically private employer-sponsored group plans. All individual plans, as well as government and church plans, are governed by state law. ERISA plans offer the insurance company more protections, which is why they are often so aggressive and unreasonable in denying claims. For example, an ERISA case must be litigated in federal court where there is no jury trial, no punitive damages to deter conduct, and no “general” or “pain and suffering” damages. Basically, the only remedy in an ERISA case is forcing the insurer to pay the claim they denied. So, there is no real downside to denying claims, the worst-case scenario is that they would have to pay it later, while keeping the money in the meantime. In contrast, I have routinely obtained $1 million plus recoveries for amputees who had their prostheses denied when state law applies, because state law provides for a jury trial, punitive damages, general damages, and attorney’s fees. The plaintiffs in these cases, for example, a schoolteacher or a law enforcement officer, have an individual plan or a government plan. Unfortunately, a very large percentage of plans are governed by ERISA and very few attorneys have any interest in litigating these cases as they are not profitable and are risky. What motivated you to work these cases? Well, I was born without my right femur [due to proximal femoral focal deficiency] and had my foot amputated shortly after I was born. So I’ve literally been walking in the same prostheses as my clients for the past 50 years. I have had claims denied myself and know personally how frustrating it is to deal with an insurance company and how harmful it is to be denied the chance to walk or have the use of a hand. I obviously have a lot of empathy for what other amputees deal with on a daily basis and understand and can communicate that to juries, defense lawyers, and insurance companies probably better than any other trial lawyer alive. I became a trial lawyer to represent injured people and love nothing more than standing up before a jury and explaining the magnitude of losing a limb or the importance of prostheses in an amputee’s daily life. I’m proud to have been a trial lawyer for 25 years, focusing on the representation of amputees for almost that entire time. Most of my cases involve traumatic amputations and the personal injury or medical malpractice lawsuits that follow when there is an at-fault party. In the past ten to 15 years, I’ve started doing more and more insurance coverage lawsuits and get tremendous satisfaction in helping amputees obtain the prosthetic devices that they need. I know how difficult it is to navigate the legal system, so I always offer free consultations to amputees and prosthetists. What makes a successful class action suit? Well, a complete answer to that is beyond the scope of this conversation, but basically you are looking for unlawful conduct by an insurer that is uniform and applied the same way to all insureds. A good example of that would be a published medical policy by an insurance company that says, for example, that all microprocessor ankles are “experimental and investigational” and not covered for all indications. In that circumstance, it is easy to demonstrate that coverage determinations are being made the same way for all amputees who may request a microprocessor ankle: the policy says they don’t get it, and that will be the stated rationale for denial in the coverage determination letter. There are, of course, many other types of cases that may be suitable for class relief. Typically, a class action in this context will seek injunctive relief, asking that an insurance company change a policy or practice. We also seek reprocessing of prior claim denials. But one limitation of a class action is that the court will not adjudicate the merits of individual medical claims. So, in other words, it doesn’t mean that a prior denial will be reversed just because we win a class action and reprocessing is ordered. Tell me the details of the class action cases you won? In the United Healthcare class action lawsuit, settled in 2019, we uncovered and exposed United’s unlawful claims practices, where they routinely denied claims based on policy language that stated: “If more than one prosthetic device can meet your functional needs, benefits are available only for the prosthetic device that meets the minimum specifications for your needs.” (“Minimum Specifications Policy”) Basically, they used this language to just deny all expensive claims without actually analyzing whether there was an alternative device that would meet the amputees’ “functional needs.” Then they issued incomplete denial letters that: Did not identify an alternative device Did not inform insureds that some codes (component parts) were approved Forced insureds to “guess and try again” We obtained all relief requested, requiring United to: Change practices moving forward. They must now inform the insured in the denial which codes are covered and offer an alternative device by name or code. Reprocess prior claim denials under the new criteria Pay prior claim denials if patient switched insurance company or paid out of pocket More recently, on October 21, 2021, in a settlement with Anthem Blue Cross, we forced the insurer to make changes to its lower-limb microprocessor prosthetic medical policies. As a result of that case, Anthem no longer considers a microprocessor foot/ankle “experimental and/or investigational.” Anthem revised its medical policy regarding the foot/ankle as well as microprocessor knee to make the coverage criteria simpler, and more consistent with industry standards. As part of the settlement, Anthem also agreed to reprocess past denials under the criteria of the new policy. What impact does the settlement have on the plaintiffs and the payer? In practice, that remains to be seen. But both settlements require the insurers (United and Anthem) to change their practices and policies moving forward and reprocess past denials under the new policies. That does not guarantee that a past denial will now be approved, but it should result in many prior denials being reversed and also preserves the insureds rights to sue the insurers again if their claims are denied after reprocessing. If you think you may be part of this class, it is important to read and respond to all notices you receive regarding the settlement and respond as there are time deadlines imposed for obtaining relief. What if I’m still seeing same type of denials from these payers? Well, we may have a new lawsuit. These insurers can be held liable for bad faith if they persist in their unlawful claims practices. How can we do more? It’s really important to understand that an insurance company’s claim determination is not the final word on whether you may be able to get your prosthesis. Many people do not know their legal rights, give up, or just settle for an inadequate device that does not fully meet their needs. The best thing to do is contact me before you even submit an appeal of the denial so I can work with the prosthetist to make sure that we give the insurance company all the information they need to make an informed coverage determination. What can amputees and prosthetists do? I always offer free consultations to amputees and prosthetists in both personal injury cases for loss of a limb or insurance coverage for denial of prosthetics. Feel free to contact me anytime to set up a call. I handle cases nationally and am always willing to help. Sometimes a case turns into a lawsuit where we can get full and fair compensation for the client, although often I just provide a lot of free pro bono advice and try to find creative solutions to solve a problem. Again, the focus of my practice is representing amputees in personal injury actions that resulted in the loss of a limb, whether it is an industrial accident, motor vehicle accident, medical malpractice, of other type of claim. The second focus of my practice are these insurance coverage cases that we have spoken so much about today. Representing amputees takes a unique skill set and knowledge base that few attorneys possess. Attorneys from across the country consult me on these cases, and I routinely find that even the best attorneys do not understand prosthetics and how to properly present a case on behalf of an amputee. Just reach out to us and we will let you know all of the information you need to gather for us to evaluate your potential case.

Interview With Conal Doyle: Trial Lawyer and Advocate

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