In Clifford Getz’s seminal essay “Deep Play: Notes on the Balinese Cockfight,” the dialectic
of cultural anthology receives explication. The people of Bali, who speak their language in hushed monotones, live out their inner ids through their fighting cocks, who engage in savagely
furious battles — two go in and one comes out. Yet, the daily life of Bali plays out without gunplay or lawsuits perhaps in part because of the daily emotive capacitor of evening “Mortal Kombat” between male chickens. That is, through the sport of cockfighting, stylized conflict resolution
occurs. As it is in Bali, so it is in America. Mutatis mutandis, the stylized conflict in the United States, involves judges, attorneys and laws. Thus, as I discuss the legal faits and machinations of the intersection of law and dermatology, it should be remembered that legal struggles are interesting and purposeful rather than inexplicable or sui generis.
What is the Cockpit for Actors Acting Out the Stylized Conflict Resolution of Legal Action?
Legal stylized conflict does not occur in a vacuum. The physical world exists in what physicists refer to as space-time, a multi-dimensional construction that defines the possible and the probable. The legal world takes place in what I refer to as Leg-Reg, the legal and regulatory framework of our laws, our regulations and the interpretations thereof. If litigants are fighting cocks, then LegReg is the cockpit where combat takes place. Litigation and lobbying, which are types of styled conflict resolution, take place inside LegReg. Legal outcomes involving insurance reimbursement, medical malpractice claims and online physician ratings are played out in a determinate fashion in the LegReg of 2011 America, and understanding this triangulation of points in this universe merits discussion.
Legal Conflict Resolution: Litigation and Settlements Against Major Insurers
In the United States in 2011, most dermatologists take compensation for patient visits and procedures in the form of payments from medical insurance companies and Medicare. As a general rule, the stream of payments from the major insurers that clean claims generated by Aetna, United, Cigna, Oxford, Blue Cross, Humana and Wellpoint is much smoother in 2011 than in 2001. Prompt payment is not just a result of Oracle’s making better databases than it did a decade ago. A vast war was fought between the major insurers, the AMA and hundreds of thousands of physicians about payments from 1999 until 2010. Former HMO tactics of simply
not paying claims, throwing claims in the garbage and litigating over every small matter were negotiated away in the settlements by the major insurers.
What made the HMOs yield? A multistate class action suit against the major for-profit HMOs (including Aetna, Cigna, Humana, United, PacifiCare and Wellpoint) for injunctive relief to stop such alleged illegal and inappropriate activities as false advertising, misrepresenting contracting and reimbursement practices, interference with delivery of care, extortion and unfair business
practices by the AMA and others succeeded. Unlike the 22,000 Japanese defenders on Iwo Jima who died rather than yield, the HMO, faced with losing this class action, decided to settle and to change their practices. The armistice bound the HMOs by consent decrees that outlined severe consequences if the HMOs and their employees did not act
This is why, every now and then, Cigna — which pays interest — sends me checks for $0.06, whenever they pay 60 days late. Other smaller companies, which were not part of the consent decrees and settlements of this decades-long fight (see UnitedUCRSettlement.com, Kaiser v. CIGNA), still send letters saying that they will pay for excimer laser for psoriasis, then dawdle for 6 months expecting the dermatologist to give up and write off the fee for the excimer laser services. While this decade of struggle might seem to be nothing more than an engagement that emulates the battle over Pork Chop Hill, the legal struggle against the HMO served a purpose. The legal system bent and produced a new, formally realizable system — if you submit a clean electronic claim to a major insurer, it will be paid.
The Complexity of Conflict Resolution
Struggles over conflict resolution between businesses (including medical practices) and companies in the LegReg continue. The online rating company Yelp continues to grapple in the courts with those who say Yelp runs a two-part rating site that works as follows: (1) If you, as a
business, pay Yelp for a listing, it posts good reviews of your business on its publicly available site (findable through a simple Google search) and makes you type in a bot-proof series of letters to see the bad reviews. (2) If you, as a business, do not pay Yelp for a listing, the webmaster at Yelp posts the bad reviews of your business on the publicly available site and makes you type in a bot-proof series of letters to see the good reviews of your business.
Class actions were filed against Yelp by allegedly aggrieved business owners who claimed, in part, that Yelp was, in effect, running an extortion scheme. However, on April 1, 2011, Judge Marilyn Hall Patel dismissed a class action lawsuit against Yelp (see A Review of Litigation Filed Against Yelp), stating the plaintiff did not have proper evidence to prove its case. While Judge Patel sided with Yelp — a major victory for the company — she gave leave for the class action
plaintiffs to rewrite and re-file their complaint. So, in May of 2011, the class action plaintiffs against Yelp filed a new suit, adding a new allegation to the previous complaints and allegations. Yelp class action litigation 2.0 now alleges that Yelp paid people to write reviews and that the
company actively manipulated the placement of negative reviews on the pages of various businesses in an effort to coerce them into buying advertising.
The Yelp litigation bears careful consideration. It took a long-time company executive who turned on a tobacco company to throw light on the tobacco companies’ tactics (and legal mischief) that was chronicled in the movie “The Insider.” And so it might be with Yelp. It could be that in LegReg USA 2012, for a Yelp 3.0 litigation to be self-sustaining, the actual internal emails at Yelp or the memos and the business plans of the angel investors and venture capital firms that fund Yelp might be needed. Such e-mails and business plans are not in the public domain … yet. Perhaps Yelp will be exonerated and is in fact innocent; only time will tell. If the experiences of Big Tobacco and the HMOs are parallel to that of Yelp, someday the litigation involving Yelp may take a different turn and Yelp might continue to be Yelp, but will have to change its business practices.
Conclusion
The cultural anthropology of LegReg is complex. The course of conflict resolution is stark and meandering, sudden and slow. The workings of all systems are complex and the outcomes of systems are not always what we want. We as dermatologist want the best for our patients, but
the cultural play of the work makes this a multivariate task. To work on the task, all of us need to understand the legal underpinnings of the great issues of the day.
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He’s an Assistant Clinical Professor at Columbia University.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
SIDEBAR: UnitedUCRSettlement.com, Kaiser vs. Cigna
Beginning in 1999, a series of class action lawsuits were filed against virtually all major entities in the health benefits business. In December 2000, a multidistrict litigation panel consolidated several litigation cases involving these major insurers in the Southern District Court of Florida, Miami division. Generally, the health care provider plaintiffs alleged violations of ERISA and RICO
in connection with alleged undisclosed policies intended to maximize profits. Other allegations included breach of state prompt-payment laws and breach of contract claims for failure to timely reimburse providers for medical services rendered. The consolidated suits sought injunctive, compensatory and equitable relief as well as restitution, costs, fees and interest payments. The trial court granted the health care providers’ motion for class certification, and that order was reviewed by the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed the class action status of the RICO claims, but reversed as to the breach of contract, unjust enrichment and prompt-payment claims. During the course of the litigation, there have been co-defendant settlements. By 2007 and 2008 all the major insurers settled suits.
SIDEBAR: A Review of Litigation Filed Against Yelp
The judge summarized the plaintiff ’s allegations against Yelp thus:
1) Yelp removed positive reviews, thereby changing the overall star rating immediately
after plaintiffs declined to purchase advertising or terminated their
advertising contracts.
2) Y elp maintained negative reviews, even though the reviews violated Yelp’s
Review Terms.
3) Yelp manufactured its own negative reviews of plaintiffs’ businesses.
4) Yelp stated that paying for advertising would help Plaintiff ’s overall star rating
because Yelp “tweaks” the ratings, “manually adds and removes reviews in
its own discretion” and its employees “have the ability to remove reviews.”
In Clifford Getz’s seminal essay “Deep Play: Notes on the Balinese Cockfight,” the dialectic
of cultural anthology receives explication. The people of Bali, who speak their language in hushed monotones, live out their inner ids through their fighting cocks, who engage in savagely
furious battles — two go in and one comes out. Yet, the daily life of Bali plays out without gunplay or lawsuits perhaps in part because of the daily emotive capacitor of evening “Mortal Kombat” between male chickens. That is, through the sport of cockfighting, stylized conflict resolution
occurs. As it is in Bali, so it is in America. Mutatis mutandis, the stylized conflict in the United States, involves judges, attorneys and laws. Thus, as I discuss the legal faits and machinations of the intersection of law and dermatology, it should be remembered that legal struggles are interesting and purposeful rather than inexplicable or sui generis.
What is the Cockpit for Actors Acting Out the Stylized Conflict Resolution of Legal Action?
Legal stylized conflict does not occur in a vacuum. The physical world exists in what physicists refer to as space-time, a multi-dimensional construction that defines the possible and the probable. The legal world takes place in what I refer to as Leg-Reg, the legal and regulatory framework of our laws, our regulations and the interpretations thereof. If litigants are fighting cocks, then LegReg is the cockpit where combat takes place. Litigation and lobbying, which are types of styled conflict resolution, take place inside LegReg. Legal outcomes involving insurance reimbursement, medical malpractice claims and online physician ratings are played out in a determinate fashion in the LegReg of 2011 America, and understanding this triangulation of points in this universe merits discussion.
Legal Conflict Resolution: Litigation and Settlements Against Major Insurers
In the United States in 2011, most dermatologists take compensation for patient visits and procedures in the form of payments from medical insurance companies and Medicare. As a general rule, the stream of payments from the major insurers that clean claims generated by Aetna, United, Cigna, Oxford, Blue Cross, Humana and Wellpoint is much smoother in 2011 than in 2001. Prompt payment is not just a result of Oracle’s making better databases than it did a decade ago. A vast war was fought between the major insurers, the AMA and hundreds of thousands of physicians about payments from 1999 until 2010. Former HMO tactics of simply
not paying claims, throwing claims in the garbage and litigating over every small matter were negotiated away in the settlements by the major insurers.
What made the HMOs yield? A multistate class action suit against the major for-profit HMOs (including Aetna, Cigna, Humana, United, PacifiCare and Wellpoint) for injunctive relief to stop such alleged illegal and inappropriate activities as false advertising, misrepresenting contracting and reimbursement practices, interference with delivery of care, extortion and unfair business
practices by the AMA and others succeeded. Unlike the 22,000 Japanese defenders on Iwo Jima who died rather than yield, the HMO, faced with losing this class action, decided to settle and to change their practices. The armistice bound the HMOs by consent decrees that outlined severe consequences if the HMOs and their employees did not act
This is why, every now and then, Cigna — which pays interest — sends me checks for $0.06, whenever they pay 60 days late. Other smaller companies, which were not part of the consent decrees and settlements of this decades-long fight (see UnitedUCRSettlement.com, Kaiser v. CIGNA), still send letters saying that they will pay for excimer laser for psoriasis, then dawdle for 6 months expecting the dermatologist to give up and write off the fee for the excimer laser services. While this decade of struggle might seem to be nothing more than an engagement that emulates the battle over Pork Chop Hill, the legal struggle against the HMO served a purpose. The legal system bent and produced a new, formally realizable system — if you submit a clean electronic claim to a major insurer, it will be paid.
The Complexity of Conflict Resolution
Struggles over conflict resolution between businesses (including medical practices) and companies in the LegReg continue. The online rating company Yelp continues to grapple in the courts with those who say Yelp runs a two-part rating site that works as follows: (1) If you, as a
business, pay Yelp for a listing, it posts good reviews of your business on its publicly available site (findable through a simple Google search) and makes you type in a bot-proof series of letters to see the bad reviews. (2) If you, as a business, do not pay Yelp for a listing, the webmaster at Yelp posts the bad reviews of your business on the publicly available site and makes you type in a bot-proof series of letters to see the good reviews of your business.
Class actions were filed against Yelp by allegedly aggrieved business owners who claimed, in part, that Yelp was, in effect, running an extortion scheme. However, on April 1, 2011, Judge Marilyn Hall Patel dismissed a class action lawsuit against Yelp (see A Review of Litigation Filed Against Yelp), stating the plaintiff did not have proper evidence to prove its case. While Judge Patel sided with Yelp — a major victory for the company — she gave leave for the class action
plaintiffs to rewrite and re-file their complaint. So, in May of 2011, the class action plaintiffs against Yelp filed a new suit, adding a new allegation to the previous complaints and allegations. Yelp class action litigation 2.0 now alleges that Yelp paid people to write reviews and that the
company actively manipulated the placement of negative reviews on the pages of various businesses in an effort to coerce them into buying advertising.
The Yelp litigation bears careful consideration. It took a long-time company executive who turned on a tobacco company to throw light on the tobacco companies’ tactics (and legal mischief) that was chronicled in the movie “The Insider.” And so it might be with Yelp. It could be that in LegReg USA 2012, for a Yelp 3.0 litigation to be self-sustaining, the actual internal emails at Yelp or the memos and the business plans of the angel investors and venture capital firms that fund Yelp might be needed. Such e-mails and business plans are not in the public domain … yet. Perhaps Yelp will be exonerated and is in fact innocent; only time will tell. If the experiences of Big Tobacco and the HMOs are parallel to that of Yelp, someday the litigation involving Yelp may take a different turn and Yelp might continue to be Yelp, but will have to change its business practices.
Conclusion
The cultural anthropology of LegReg is complex. The course of conflict resolution is stark and meandering, sudden and slow. The workings of all systems are complex and the outcomes of systems are not always what we want. We as dermatologist want the best for our patients, but
the cultural play of the work makes this a multivariate task. To work on the task, all of us need to understand the legal underpinnings of the great issues of the day.
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He’s an Assistant Clinical Professor at Columbia University.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
SIDEBAR: UnitedUCRSettlement.com, Kaiser vs. Cigna
Beginning in 1999, a series of class action lawsuits were filed against virtually all major entities in the health benefits business. In December 2000, a multidistrict litigation panel consolidated several litigation cases involving these major insurers in the Southern District Court of Florida, Miami division. Generally, the health care provider plaintiffs alleged violations of ERISA and RICO
in connection with alleged undisclosed policies intended to maximize profits. Other allegations included breach of state prompt-payment laws and breach of contract claims for failure to timely reimburse providers for medical services rendered. The consolidated suits sought injunctive, compensatory and equitable relief as well as restitution, costs, fees and interest payments. The trial court granted the health care providers’ motion for class certification, and that order was reviewed by the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed the class action status of the RICO claims, but reversed as to the breach of contract, unjust enrichment and prompt-payment claims. During the course of the litigation, there have been co-defendant settlements. By 2007 and 2008 all the major insurers settled suits.
SIDEBAR: A Review of Litigation Filed Against Yelp
The judge summarized the plaintiff ’s allegations against Yelp thus:
1) Yelp removed positive reviews, thereby changing the overall star rating immediately
after plaintiffs declined to purchase advertising or terminated their
advertising contracts.
2) Y elp maintained negative reviews, even though the reviews violated Yelp’s
Review Terms.
3) Yelp manufactured its own negative reviews of plaintiffs’ businesses.
4) Yelp stated that paying for advertising would help Plaintiff ’s overall star rating
because Yelp “tweaks” the ratings, “manually adds and removes reviews in
its own discretion” and its employees “have the ability to remove reviews.”
In Clifford Getz’s seminal essay “Deep Play: Notes on the Balinese Cockfight,” the dialectic
of cultural anthology receives explication. The people of Bali, who speak their language in hushed monotones, live out their inner ids through their fighting cocks, who engage in savagely
furious battles — two go in and one comes out. Yet, the daily life of Bali plays out without gunplay or lawsuits perhaps in part because of the daily emotive capacitor of evening “Mortal Kombat” between male chickens. That is, through the sport of cockfighting, stylized conflict resolution
occurs. As it is in Bali, so it is in America. Mutatis mutandis, the stylized conflict in the United States, involves judges, attorneys and laws. Thus, as I discuss the legal faits and machinations of the intersection of law and dermatology, it should be remembered that legal struggles are interesting and purposeful rather than inexplicable or sui generis.
What is the Cockpit for Actors Acting Out the Stylized Conflict Resolution of Legal Action?
Legal stylized conflict does not occur in a vacuum. The physical world exists in what physicists refer to as space-time, a multi-dimensional construction that defines the possible and the probable. The legal world takes place in what I refer to as Leg-Reg, the legal and regulatory framework of our laws, our regulations and the interpretations thereof. If litigants are fighting cocks, then LegReg is the cockpit where combat takes place. Litigation and lobbying, which are types of styled conflict resolution, take place inside LegReg. Legal outcomes involving insurance reimbursement, medical malpractice claims and online physician ratings are played out in a determinate fashion in the LegReg of 2011 America, and understanding this triangulation of points in this universe merits discussion.
Legal Conflict Resolution: Litigation and Settlements Against Major Insurers
In the United States in 2011, most dermatologists take compensation for patient visits and procedures in the form of payments from medical insurance companies and Medicare. As a general rule, the stream of payments from the major insurers that clean claims generated by Aetna, United, Cigna, Oxford, Blue Cross, Humana and Wellpoint is much smoother in 2011 than in 2001. Prompt payment is not just a result of Oracle’s making better databases than it did a decade ago. A vast war was fought between the major insurers, the AMA and hundreds of thousands of physicians about payments from 1999 until 2010. Former HMO tactics of simply
not paying claims, throwing claims in the garbage and litigating over every small matter were negotiated away in the settlements by the major insurers.
What made the HMOs yield? A multistate class action suit against the major for-profit HMOs (including Aetna, Cigna, Humana, United, PacifiCare and Wellpoint) for injunctive relief to stop such alleged illegal and inappropriate activities as false advertising, misrepresenting contracting and reimbursement practices, interference with delivery of care, extortion and unfair business
practices by the AMA and others succeeded. Unlike the 22,000 Japanese defenders on Iwo Jima who died rather than yield, the HMO, faced with losing this class action, decided to settle and to change their practices. The armistice bound the HMOs by consent decrees that outlined severe consequences if the HMOs and their employees did not act
This is why, every now and then, Cigna — which pays interest — sends me checks for $0.06, whenever they pay 60 days late. Other smaller companies, which were not part of the consent decrees and settlements of this decades-long fight (see UnitedUCRSettlement.com, Kaiser v. CIGNA), still send letters saying that they will pay for excimer laser for psoriasis, then dawdle for 6 months expecting the dermatologist to give up and write off the fee for the excimer laser services. While this decade of struggle might seem to be nothing more than an engagement that emulates the battle over Pork Chop Hill, the legal struggle against the HMO served a purpose. The legal system bent and produced a new, formally realizable system — if you submit a clean electronic claim to a major insurer, it will be paid.
The Complexity of Conflict Resolution
Struggles over conflict resolution between businesses (including medical practices) and companies in the LegReg continue. The online rating company Yelp continues to grapple in the courts with those who say Yelp runs a two-part rating site that works as follows: (1) If you, as a
business, pay Yelp for a listing, it posts good reviews of your business on its publicly available site (findable through a simple Google search) and makes you type in a bot-proof series of letters to see the bad reviews. (2) If you, as a business, do not pay Yelp for a listing, the webmaster at Yelp posts the bad reviews of your business on the publicly available site and makes you type in a bot-proof series of letters to see the good reviews of your business.
Class actions were filed against Yelp by allegedly aggrieved business owners who claimed, in part, that Yelp was, in effect, running an extortion scheme. However, on April 1, 2011, Judge Marilyn Hall Patel dismissed a class action lawsuit against Yelp (see A Review of Litigation Filed Against Yelp), stating the plaintiff did not have proper evidence to prove its case. While Judge Patel sided with Yelp — a major victory for the company — she gave leave for the class action
plaintiffs to rewrite and re-file their complaint. So, in May of 2011, the class action plaintiffs against Yelp filed a new suit, adding a new allegation to the previous complaints and allegations. Yelp class action litigation 2.0 now alleges that Yelp paid people to write reviews and that the
company actively manipulated the placement of negative reviews on the pages of various businesses in an effort to coerce them into buying advertising.
The Yelp litigation bears careful consideration. It took a long-time company executive who turned on a tobacco company to throw light on the tobacco companies’ tactics (and legal mischief) that was chronicled in the movie “The Insider.” And so it might be with Yelp. It could be that in LegReg USA 2012, for a Yelp 3.0 litigation to be self-sustaining, the actual internal emails at Yelp or the memos and the business plans of the angel investors and venture capital firms that fund Yelp might be needed. Such e-mails and business plans are not in the public domain … yet. Perhaps Yelp will be exonerated and is in fact innocent; only time will tell. If the experiences of Big Tobacco and the HMOs are parallel to that of Yelp, someday the litigation involving Yelp may take a different turn and Yelp might continue to be Yelp, but will have to change its business practices.
Conclusion
The cultural anthropology of LegReg is complex. The course of conflict resolution is stark and meandering, sudden and slow. The workings of all systems are complex and the outcomes of systems are not always what we want. We as dermatologist want the best for our patients, but
the cultural play of the work makes this a multivariate task. To work on the task, all of us need to understand the legal underpinnings of the great issues of the day.
Dr. Scheinfeld graduated from Harvard Law School in 1989 and Yale Medical School in 1997. He’s an Assistant Clinical Professor at Columbia University.
Disclosure: Dr. Scheinfeld has no conflicts of interest with any material in this column.
SIDEBAR: UnitedUCRSettlement.com, Kaiser vs. Cigna
Beginning in 1999, a series of class action lawsuits were filed against virtually all major entities in the health benefits business. In December 2000, a multidistrict litigation panel consolidated several litigation cases involving these major insurers in the Southern District Court of Florida, Miami division. Generally, the health care provider plaintiffs alleged violations of ERISA and RICO
in connection with alleged undisclosed policies intended to maximize profits. Other allegations included breach of state prompt-payment laws and breach of contract claims for failure to timely reimburse providers for medical services rendered. The consolidated suits sought injunctive, compensatory and equitable relief as well as restitution, costs, fees and interest payments. The trial court granted the health care providers’ motion for class certification, and that order was reviewed by the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed the class action status of the RICO claims, but reversed as to the breach of contract, unjust enrichment and prompt-payment claims. During the course of the litigation, there have been co-defendant settlements. By 2007 and 2008 all the major insurers settled suits.
SIDEBAR: A Review of Litigation Filed Against Yelp
The judge summarized the plaintiff ’s allegations against Yelp thus:
1) Yelp removed positive reviews, thereby changing the overall star rating immediately
after plaintiffs declined to purchase advertising or terminated their
advertising contracts.
2) Y elp maintained negative reviews, even though the reviews violated Yelp’s
Review Terms.
3) Yelp manufactured its own negative reviews of plaintiffs’ businesses.
4) Yelp stated that paying for advertising would help Plaintiff ’s overall star rating
because Yelp “tweaks” the ratings, “manually adds and removes reviews in
its own discretion” and its employees “have the ability to remove reviews.”
