BiPolar Discriminated when seeking LapBand

[tranquility]

Ah, finally a legal claim. Bulletproof as it is, I find many errors. Instead of moving down each one (and noting the difficulty of a lawsuit--especially with one who misunderstands where the burdens lie), I note the following from a full ten second search of the internet at http://www.bannerhealth.com/NR/rdonlyres/0E2EFF2E-7786-44A9-811B-721586CA7A24/28783/LapBandPatientHandbook40607.pdf:

PATIENT SELECTION
Each patient is evaluated on an individual basis for bariatric surgery. Although we
follow patient selection guidelines as established by the American Society for Bariatric
Surgery, The Society of American Gastrointestinal Endoscopic Surgeons, and the National
Institutes of Health, there is no absolute set of rules that determines which patients are
accepted and which patients are not accepted for surgery.
6 Revised 4-06-07
Some of the factors considered in the evaluation process are:
1. You are an adult (at least 18 years old).
2. You are approximately 100 pounds or more above ideal body weight as described in
life insurance height/weight charts, and/or have a BMI of 35 or greater with
comorbidities (health problems), OR have a BMI of 40 or greater with or without
comorbidities.
3. You have failed at previous attempts to achieve lasting weight loss.
4. You have physical problems and/or diseases related to obesity including, but not
limited to: high blood pressure, elevated blood fats, heart problems, breathing
problems, chronic back pain or degenerative arthritis.
5. You do not have bipolar disorder, schizophrenia, or a severe personality disorder.
6. You have been overweight for more than 5 years.
7. Your serious attempts to lose weight have had only short-term success.
8. You do not have any other disease that may have caused you to be overweight.
9. You are prepared to make major changes in your eating habits and lifestyle.
10. You are willing to continue working with Dr. Johnell on an ongoing basis for followup
care.
11. You do not drink alcohol in excess.
The Lap-Band® System is not right for you if:
1. You have an inflammatory disease or condition of the gastrointestinal tract, such as
ulcers, severe esophagitis, or Crohn's disease.
2. You have severe heart or lung disease that makes you a poor candidate for surgery.
3. You have some other disease that makes you a poor candidate for surgery.
4. You have a problem that could cause bleeding in the esophagus or stomach. That
might include esophageal or gastric varices (a dilated vein). It might also be
something such as congenital or acquired intestinal telangiectasia (dilation of a
small blood vessel).
5. You have portal hypertension.
6. Your esophagus, stomach, or intestine is not normal (congenital or acquired). For
instance you might have a narrowed opening.
7 Revised 4-06-07
7. You have experienced an intra-operative gastric injury, such as a gastric perforation
at or near the location of the intended band placement.
8. You have cirrhosis.
9. You have chronic pancreatitis.
10. You are pregnant. (If you become pregnant after the BioEnterics® LAP-BAND®
System has been placed, the band may need to be deflated. The same is true if you
need more nutrition for any other reason, such as becoming seriously ill. In rare
cases, removal may be needed.)
11. You are addicted to alcohol or drugs.
12. You are under 18 years of age.
13. You have an infection anywhere in your body or one that could contaminate the
surgical area.
14. You are on chronic, long-term steroid treatment.
15. You cannot or do not want to follow the dietary rules that come with this
procedure.
16. You might be allergic to materials in the device.
17. You or someone in your family has an autoimmune connective tissue disease. This
would include diseases such as systemic lupus erythematosus or scleroderma. The
same is true if you have symptoms of one of these diseases.
Motivation is essential to successful weight loss. The bariatric surgery team will make
sure you know what your responsibilities are. These include new eating patterns, exercise
and a new lifestyle. If you are ready to take an active part in reducing your weight, you will
be considered for the treatment.

 

[pcgumshoe]

PamiToni wrote:

Your disability is brought on by yourself. I am a victim of severe depression but I get up and I work at being positive and I try to find happiness in my misery.

I'm sorry about your depression. Depression can be caused by many different factors, including, Seasonal Affective Disorder(SAD), Bipolar Disorder, Major Depression, Poor Sleep, Sleep Apnea, Self-Esteem issues, and many other reasons. My depression is caused by a multitude of "innate" and "environmental" issues including bipolar (innate), sleep apnea and poor self-esteem (brought on by obesity which may be a result of my overall innate bipolar condition), and poor sleep (which is caused by sleep apnea, PTSD, and rapid thoughts associated with Bipolar disorder). Part of my condition is "nature" some is "nurture."

Myhouse wrote:

you keep bringing up your therapist and your diagnosis. I understand all of that, but would like to know if your therapist spends any time working on your behavior, so that you may fit in better and get along with people better.

As you can see by the above response, some of my condition is associated with a birth defect (innate) in my brain chemistry, other parts of it are cognitive/learned behaviors. My therapists and other doctors are attempting to help me with cognitive/developmental skills to deal with the "outside" world, however, this form of therapy, in their words, will take many many years of therapy. It wasn't until last year that (after fighting for 7 years) I got my Medicare vs Medicaid (a clerical mistake in my disability application). Now that I have Medicare, I get treatment for my condition EVEN THOUGH I have to pay 50% of the costs vs the standard 20% for physical conditions (This may change in time to see physical and mental disabilities as equal for Medicare benefits).

I agree that my perceived actions do bring this on myself. I've never denied that.
More from my psychological report:

Personality testing was validly completed, and the response set suggests an individual who has completed this in a balanced attempt to endorse both positive and negative traits. The scores that individuals obtain on these MCMI scales characterize people with introversive, avoidant, and negativistic elements in their personality styles. They have little interest in experiencing the subtle aspects of interpersonal relationships. Because of their lack of interest in interpersonal matters, these individuals might have turned their attention towards areas that do not involve people, such as reading or art. At worst, such individuals may be perceived as being emotionally insensitive in a distant and apathetic way. Such people probably have very few friends and little real interpersonal involvement.

....[T]hese individuals are generally unresponsive to stimuli. This is true regardless of whether the stimulus comes from their own processes or from the outside. Similar individuals are not particularly energetic or enthusiastic and their thinking is usually vague, unclear, and somewhat impoverished. They are not prone to understanding or interpreting past events .... At times, they may appear evasive and overly defended, but most typically thy just seem somewhat apathetic, dull, and uninteresting.

To Tranquility:

A history of mental illness has no predictive value. A total of 83 (18%) of patients gave a history of a mental illness preoperatively. Of these 83 patients, 76 had a history of diagnosed depression and seven had severe anxiety state; 15 of the 83 were considered to have major mental illness, eight with episodes of severe depression, four with bipolar disorder, one with severe panic attacks, one with disabling obsessive compulsive disorder and one with schizophrenia. The %EWL1 of those with a history of mental illness (N=83) and the subgroup with serious mental illness (N=15) was not different to that of the whole group. In addition, the mental health scaled score and mental component summary (MCS) of the SF-36 were of no predictive value.

I hope that gives you a clearer view of the results of mental issues and their impact on WLS (Weight Loss Surgery).

And finally or FINALLY! JBK in Georgia, thank you for pointing out what took me 4 pages of posting here to make evident. You also said,

I do not think that the facts outlined by the OP amount to a legal claim.

I did post somewhere earlier that I might not be putting things in the right terms, and here's quote from my psychological report that would back that statement up:

their thinking is usually vague, unclear, and somewhat impoverished.

I'm not asking for accommodation here, I was asking for "FREE ADVICE" and true to form seniorjudge niggardly provided it!

I love all the people here who have been kindly suggesting that I'm "whining" or "lazy" or that I'm a "pain in the butt." If you all could remove yourselves from your sanity for a moment and believe that their are intelligent people out there who suffer every day IN YOUR WORLD because of their mental illness that they struggle to keep inside, then maybe you can accept that maybe I'm not "faking" it or "looking for attention." The furthest thing from my mind is getting attention, but I also want to coincide in peace and as close to harmony as I can get. I don't expect the world owes me much. I'm sorry that at present there is no medical solution to my social and personality issues. If I could take a pill and fix it, I would. At this time, the only thing I can do is continue trying to attack ALL aspects of my conditions, which includes, losing weight by whatever means necessary. I have been unsuccessful on diets, depression and stress affect Cortisol production, a main contributor to weight gain. Reducing the size of my stomach and being motivated to exercise and lose the weight will have dual positive influence on my overall mental health condition, specifically depression. I sought this treatment not SOLELY for the weight-loss, but the reduction in those areas I have control of.

As a disabled person, how many times would you have me accept discrimination before I did something about it? Fortunately, their are laws to protect people like me who, otherwise, wouldn't be able to speak out, reach out, and participate, however minimal, in the life you take for granted.

 

[Zigner]

You are right, "no doctor has to treat" me. However, this doctor AGREED to treat me.

I don't care what any further posts say. This post acknowledges that you understand that the doctor doesn't HAVE to treat you. He agreed, and then he changed his mind. He is not obligated to treat you. The same as I could agree to hand you $20 today, and then change my mind tomorrow.

Case closed.

 

[seniorjudge]

...
Hey, Senior Judge, I thought I’d be ornery as well. In response to your statement, “In any event, you do not realize that no doctor has to treat you,” I’d direct you to 42 U.S.C. § 12182(a), which provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ... operates a place of public accommodation.” The term “public accommodation” is defined to include the “professional office of a health care provider.” 42 U.S.C. § 12181(7)(F). I guess doctors do, in some cases, have to treat patients. The Supremes agreed, saying that dentists could not refuse to treat HIV positive patients without objective evidence that such treatment posed a serious threat to their health. I don’t remember the cite, but it was a case about 8-10 years ago, something v. Abbott, I think.
....

http://www.thebody.com/content/legal/art33489.html

Show me where a doctor is not allowed to turn down patients.

 

[tranquility]

To Tranquility:

Quote:
A history of mental illness has no predictive value. A total of 83 (18%) of patients gave a history of a mental illness preoperatively. Of these 83 patients, 76 had a history of diagnosed depression and seven had severe anxiety state; 15 of the 83 were considered to have major mental illness, eight with episodes of severe depression, four with bipolar disorder, one with severe panic attacks, one with disabling obsessive compulsive disorder and one with schizophrenia. The %EWL1 of those with a history of mental illness (N=83) and the subgroup with serious mental illness (N=15) was not different to that of the whole group. In addition, the mental health scaled score and mental component summary (MCS) of the SF-36 were of no predictive value.

I hope that gives you a clearer view of the results of mental issues and their impact on WLS (Weight Loss Surgery).

I saw the study in my ten second search as well. Perhaps they should do a full peer-review and convince the different professional organizations and the particular doctors you want to treat you. There may be some support that #5 is incorrect. One study does not make it so and certainly does not make it so to the level of a lawsuit, but maybe. We still have the motivational problem at the end.

Motivation is essential to successful weight loss. The bariatric surgery team will make
sure you know what your responsibilities are. These include new eating patterns, exercise
and a new lifestyle. If you are ready to take an active part in reducing your weight, you will
be considered for the treatment.

Which brings us back to the original reasoning:

"Our initial review of your medical information and psychological history brought up serious concerns regarding your ability to have a successful surgical outcome. However, the team had wanted to give you the opportunity to work closely with us to determine if your risk factors could be contained well enough to proceed. Unfortunately, interactions between you and our staff have made it so that this close relationship cannot be developed and the multidisciplinary team has determined that you are not a candidate for this procedure at this institution."

Which is going to be a completely defensible decision based on objective criteria.

The bottom line is that it would take thousands upon thousands of dollars in experts to even get your foot in the door past a judgment on the pleadings in any lawsuit on this matter. You will not find any attorney to take it and you will be unable to be successful on your own. People have given you other options, which you reject. You seem to want to be stuck on this particular provider who has rejected you for objective reasons reasonably related to the potential success of the treatment. (Heck, it's almost like they *knew* the law when they wrote you the letter for denial of treatment.) While you suspect it is entirely based on a subjective interpretation of a single outburst with a low-paid employee, nothing you have posted leads anyone else in the forum to that conclusion.

You are far from having the law on your side, so stop banging on the law. Your interpretation of the facts, while within the realm of possibility, have so many other interpretations that seem more reasonable make me believe your theory is incorrect. Besides, the ability to prove the facts you want to prove is extremely problematic. So, stop banging on the facts.

This leaves the table. You may continue to bang on that as much as you want.

 

[pcgumshoe]

First to myhouse:

Have you tried calling the doctor's office and apologizing to the people you offended?

Yes, I also explained that generally I take Valium in public to squelch the anxiety. This incident made me aware that I was ONLY taking it when I physically left my house NOT vocally or in writing. I explained that I hadn't assessed the possibility that when I spoke on the phone and sent emails that I probably should be on the Valium as well. It was an approved apology by my therapist.

To seniorjudge:

JDK in Georgia DID point out the law, the case he referred to dealt with the ADA's direct threat clause, "The ADA’s direct threat provision stems from the recognition in School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 287 (1987), of the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks, resulting, for instance, from a contagious disease." (seniorjudge, I question why you would refer to a excerpt rather than the full citation which can be found here: http://www.law.cornell.edu/supct/html/97-156.ZO.html)

Arguably, this is NOT a situation of direct threat as many of the HIV cases have also been decided. I'm not sure where JDK was going with that case, I'd have to give it a more thorough review, however the case I cited presents the criteria for the case (see Lesley vs Chie). Those criteria are: 1) That I'm disabled, 2) That the doctor is federally funded,3) that I was "otherwise qualified" to receive the treatment, and 4) that I was denied treatment "solely by reason of my disability." (See also: 29 U.S.C. Section 794 (a) "No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978,")

You also ask, however:

Show me where a doctor is not allowed to turn down patients.

I counter question: Show me where the doctor INITIALLY turned me down. He didn't.

Our initial review of your medical information and psychological history brought up serious concerns regarding your ability to have a successful surgical outcome. However, the team had wanted to give you the opportunity to work closely with us...

He didn't turn me down, he accepted me, THEN he turned me down. My argument is that the reason he turned me down was because of my disability NOT any other "reasonable medical support."

Tranquility wrote:

Which is going to be a completely defensible decision based on objective criteria.

I agree with you. BUT in order to agree with you, they will have to admit that they discriminated based on medical FACTS not merely on my interpersonal skills. That they will have a hard time proving since all the medical facts PRIOR to my complaining suggested I was "otherwise qualified."

BTW: I've already begun with another center, I'm moving forward with that FIRST. Why? Because if I PROVE that I can do this and succeed with no complications BASED on my disability AND it improves my condition, then they withheld a medical procedure from an otherwise qualified individual solely because of my disability and should be punished PLUS I should be compensated for the $2,500 trip PLUS the undue stress this caused me.

On the subject of "motivation" that has been resolved by my ongoing therapy, they signed off stating that I will follow the after care. There have been other cases where obese people who were obese because of a medical condition sought to have this procedure, were denied originally because the risks appeared to outweigh the benefits. Ultimately, when the person lost the weight the original serious medical condition went away and they became otherwise healthy. You have two thoughts conflicting in that situation where one says, "You're too sick to have this treatment." The other says, "You will remain sick unless you have this procedure." Which LESLEY addresses.

 

[Zigner]

I would suggest that everyone stop replying to this. I would also suggest that this thread be closed. It is OBVIOUS that the OP is *not* looking for legal advice.

 

[pcgumshoe]

I would suggest that everyone stop replying to this. I would also suggest that this thread be closed. It is OBVIOUS that the OP is *not* looking for legal advice.

What a ZINGER... Great idea, let's close this now that people are coming around to see the POSSIBILITY that there's something here.

I did come here for "FREE" advice, and in so doing, I was presented with good argument that caused me to think, expand, and develop my position and ultimately read a few cases that apply to my situation.

Now, I need to assess the DOWN SIDE of what has been developed here rather than defending how "lazy" I am.

 

[ellencee]

I would suggest that everyone stop replying to this. I would also suggest that this thread be closed. It is OBVIOUS that the OP is *not* looking for legal advice.

Amen. Someone lock this thread!!

EC

 

[JBK in Georgia]

As to locking this thread, I don't necessarily agree that it is ready to be locked. There is still a good flow of differing opinions going on. Just because everyone does not agree does not mean that there is no benefit to the debate. The tone of the thread has also seemed to become less contentious, other than demands for thread locking, in the past page or two.

pcgumshoe,

My citing the Abbott case was merely to give an example of where the highest court in the land found that doctors may, in fact, be required to treat patients. Although this is not completely true, it does affirm the fact that doctors cannot refuse to treat patients based solely on a disability. I understand that the primary issues in the case involved whether or not HIV is a legal disability (finding that it is) and whether or not medical providers could refuse to treat patients based on the subjective fear of health risks to themselves and staff (finding that they could not).

As a caveat here, I am an attorney experienced in employment law, including employment-related aspects of the ADA and Rehabilitation Act. I do not practice in the public accommodations sections of the Act. However, many of the standards for cases like yours are the same as in the employment context.

That being said, my gut feeling that your situation does not rise to the level of an actionable claim stems from the well-settled fact that an employer is not required to hire, continue to employ, promote, etc. a disabled individual unless the individual can perform the essential functions of his or her job with or without reasonable accommodations. While I do not know whether or not similar standards apply in your kind of situation, I would suspect that the "otherwise qualified" patient standards in the regulations would mean something similar to the employment law standard. Again, without knowing for sure, I would guess that you must show that, despite your disability, you are still a suitable candidate for the procedure. I have seen your arguments that you are so suitable, but I have not compared that factual scenario with any decided cases. It might be that you have a claim, or it might not be. My educated guess is that the reasons articulated by the medical provider that you be able to work closely with the staff are reasonable and your real (or perceived) inability to do so, whether or not as a result of any disability, would make you not otherwise qualified for the procedure. Again, this is speculation from an attorney who does not practice in this specific area of the law, which is why I encourage you to seek the advice of an attorney who does know this area of law.

In any event, good luck to you.

 

[tranquility]

As I wrote previously, there are many holes in the OP's legal theories. One important one has to do with the Rehabilitation act itself. It deals with government actors. This is acknowledged by the OP with:

29 U.S.C. section 794(a) "To prevail on a section 504 of the Rehabilitation act, I must prove four elements. 1) That I was disabled; 2) That i sought services from a federally funded entity; 3) that I was "otherwise qualified" to receive this service; and 4) that I was denied this service 'solely by reason of my disability.'"

and then proved up #2 with:

2) The hospital accepts Medicare as a form of payment and that makes them a federally funded entity for purposes of the Rehabilitation Act: Nobody questions this, right?

However in a fairly famous case decided in the state and circut of the OP, Schiavo v. Schiavo, 403 F.3d 1289 (11th Cir. 03/25/2005)
[Yes, *that* Schiavo.] the court referenced a similar argument for "state actor" in the case portion which involved the ADA and the Rehabilitation act:

Finally, plaintiffs contend that the Hospice is a state actor because it receives Medicare and Medicaid money. The Supreme Court has repeatedly held, however, that federal money does not transform private persons or entities into state actors. See, e.g., S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 544, 107 S. Ct. 2971, 2985 (1987); Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S. Ct. 2777, 2789 (1982); Rendell-Baker v. Kohn, 477 U.S. 830, 840, 102 S. Ct. 2764, 2770 (1982).

Find another theory. Even if you could get by everything else (which I doubt), you will have the pesky Supreme Court to deal with.

 

[pcgumshoe]

JBK wrote:

As to locking this thread, I don't necessarily agree that it is ready to be locked.

Thank you!
JBK also wrote:

I would guess that you must show that, despite your disability, you are still a suitable candidate for the procedure. I have seen your arguments that you are so suitable, but I have not compared that factual scenario with any decided cases

I completely agree and I also agree with an earlier post surrounding the many thousands of dollars it would take to get into a courtroom given the "battle of the experts."
JBK also wrote:

My educated guess is that the reasons articulated by the medical provider that you be able to work closely with the staff are reasonable and your real (or perceived) inability to do so, whether or not as a result of any disability, would make you not otherwise qualified for the procedure.

I agree in part and disagree in part. The case I cited, Lesley vs Chie, spells out specifics surrounding similar cases, albeit in the 1st Circuit. Not being a lawyer and not having Westlaw or other, I'm limited in my research until I can get to a Law Library.

In Lesley, they point out that in situations where the doctor may be pretexting (i.e."you must be able to work closely with staff.") if that is based on stereotype and not by looking at the individual, See Sumes v Andres "Doctor who refused to treat deaf patient on ground that 'all deaf people are high risk,' without making an inquiry regarding her specific condition." There's also a case I read recently where a blood bank refused to take blood from a bipolar patient because he was "high risk" because of the definition (aka stereotype) of his condition.

I believe here is the same situation and the dots can be connected.

I came here to be stimulated to think. I don't want to pursue this UNTIL I have had the procedure somewhere else and I prove to them that I WAS "otherwise qualified." I think, then, the proof will be in the pudding, so to speak.

To me it was clearly discrimination, however in articulately I worded it. I am in contact with a lawyer friend who's putting me in contact with one of his professors who teaches discrimination law to further review this situation. Also, I've been focusing on Federal Cases, even though the case law points that this would begin under state mal-practice law, because of diversity of citizenship, they are in California, I am in Florida.

I knew more about the law going into this BECAUSE I reviewed it when I was denied in Florida because the local Medicare payment center is more stringent in their requirements. I've contacted New Jersey (where I've lived) and they go by the National Coverage Database and I'd be a candidate there like California.

Additionally, I've sent a letter stating BOLDLY that I am prone to anxiety, irritability and frustration associated with my disability and request the accommodation of and advocate, that they confirm my medicated status when presenting otherwise stressful information and any other accommodations they can think of. My therapist is in New Jersey and will by advocate.

 

[pcgumshoe]

tranquility wrote:

Find another theory. Even if you could get by everything else (which I doubt), you will have the pesky Supreme Court to deal with.

I have not mentioned the name of the Hospital where I was seen. I did mention that I can request the emails under the "freedom of information act" because this is a "federally funded Medical hospital AND school."

So, now you are changing your position to I'm correct EXCEPT the federal funds issue? I also believe you are misquoted on the Shiavo case, either way, the 9th circuit would apply and YES the Supreme Court would apply.

Perhaps you link to a full copy of that opinion AND the three or four cases that were decided prior to 1990. My case was decided in 2001. But since you won't do the research, I will and prove you wrong, unless you accept that a "TEACHING HOSPITAL" may receive public funds and be a public entity. The ADA, btw, was to tear that aspect of it down. This isn't a private office, this is a public hospital open to everyone.

 

[You Are Guilty]

I don't know why I feel compelled to chime in, but from a med mal perspective, I see no claim. The reasons would take too long to type (and most have been raised already).

In any event, there is either a claim or not. Discussing it here any further won't change that. OP, file your lawsuit/complaint/nasty letter and let us know how it works out for you.

 

[pcgumshoe]

From the 9th Circuit, an interesting little zinger....

Case, Gambini v Total Renal Care, Inc. (March 1, 2007)

Accordingly the jury was entitled to infer reasonably that her "violent outburst" on July 11 was a consequence of her bipolar disorder, which the law protects as part and parce of her disability. In those terms, if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only.

Gambini was therefore entitled to have the jury instructed that if it found that her conduct at issue was caused by or was part of her disability, it could then find that one of the "substantial resons" she was fired was her bipolar condition. Rejection of that instruction cannot be labeled a "harmless error" under the Swinton standard.

My outburst wasn't violent!