Callahan & Blaine

Ady Barkan is willing to give his last breath to bring about change in our managed health care system. With a ruling today by United States District Court Judge Michael Fitzgerald, denying Health Net’s motion to compel arbitration of Mr. Barkan’s class action lawsuit, the change sought by Mr. Barkan will be litigated in federal court. His attorneys, Rich Collins and Damon Eisenbrey of Callahan & Blaine in Santa Ana, California, celebrated the ruling as a huge victory for Mr. Barkan and for all consumers who are too often forced to arbitrate their claims against large corporations.

Two years and two weeks ago, Mr. Barkan was diagnosed with amyotrophic lateral sclerosis (“ALS”). The progressive degeneration of ALS eventually leads to the brain’s inability to initiate and control muscle movement, causing those who suffer from the disease to lose the ability to speak, eat, move and breathe. But before the ALS robs Mr. Barkan of his ability to speak, Health Net sought to silence him with its motion to compel arbitration.

On June 29, 2018, Mr. Barkan filed a class action lawsuit against Health Net in an effort to change Health Net’s practices and to seek redress for the thousands of other policyholders who have suffered from Health Net’s alleged bad faith insurance practices. Ohad Barkan v. Health Net of California, Inc., et al., Case No.: CV 18-6691-MWF (ASx).

Mr. Barkan had been receiving his health care coverage through Cigna, and had been treating with Karen DaSilva, M.D., a neurologist in Santa Barbara, a provider within Cigna’s network.  Mr. Barkan discontinued his Cigna plan January 1, 2018, and enrolled in the Health Net Blue & Gold HMO with his wife and son. Dr. DaSilva also is a provider within Health Net’s network, which should have precluded any interference with Mr. Barkan’s continuity of care.

Dr. DaSilva determined it was medically necessary for Mr. Barkan to use a ventilator and take the prescription medication, Radicava. Health Net refused to authorize the prescription for Radicava on the grounds that it was not medically necessary, and denied authorization for the ventilator on the grounds that it was experimental or investigational. Mr. Barkan appealed the denials, and in a letter dated January 27, 2018, Health Net reversed its denials.

But Mr. Barkan’s lawsuit goes well beyond Health Net’s denial of his treatment. Mr. Barkan is suing Health Net for breaching its promise to deliver covered, medically necessary health care, and to challenge what he claims are Health Net’s bad faith, deceptive and unfair insurance practices on behalf of all of those other Health Net insureds who have suffered, and in the future will suffer, wrongful denials of claims because of Health Net’s ambiguous “Experimental or Investigational” and “Medically Necessary” exclusions and bad faith insurance practices.

Like most health insurance companies, Health Net sells health care service plans and policies that contain a binding arbitration clause. In Mr. Barkan’s case, the arbitration clause was found on page 59 of the 94-page plan booklet. These clauses are included in policies and plans on a take-it-or-leave-it basis. Health Net moved to enforce this arbitration clause in an effort to avoid publicly litigating Mr. Barkan’s class action claims in District Court.

Judge Fitzgerald denied Health Net’s motion, agreeing with Mr. Barkan’s argument that Health Net’s enrollment form does not comply with California’s statutory mandates regarding disclosure and notice to the applicant that he or she is waving the right to a jury trial and that any claims against Health Net are subject to binding arbitration. Judge Fitzgerald further ruled that, even if the inadequacies of the enrollment form disclosure could be remedied by the actual arbitration clause in the plan document, the clause is utterly indistinguishable from the other surrounding provisions.

After the hearing, Mr. Barkan had this to say: “Tens of millions of Americans are mistreated by their health insurance companies. These insurance companies delay and deny coverage every day, and families like mine bear the burden. Then, they use unconscionable binding arbitration agreements to prevent us from enforcing our legal rights. This ruling is a major victory for patients like me who need access to healthcare and access to the American courts. I brought this lawsuit in order to highlight the need for single-payer Medicare for All. Along the way, we are also going to highlight how the mandatory arbitration system harms so many families like mine.  I am excited about today’s ruling, and I look forward to bringing my claims—and the claims of thousands of other members of our class action—in front of a jury.”

For more information, contact:
Laurali Kobal, Firm Administrator, 714-241-4444, Laurali@callahan-law.com