The class-action mavens at San Francisco's Lieff, Cabraser, Heimann & Bernstein and New York's Anderson, Kill & Olick think they've found a federal cause of action to safeguard every adult male's right to a harder and longer-lasting erection.
Yes, the Viagra legal battles have begun.
In a suit filed in federal district court in New York two weeks ago against managed care provider Oxford Health Plans, the Lieff-Anderson legal team seeks injunctive relief, damages and -- of course -- attorneys fees to force Oxford to cover Viagra prescriptions for all impotent men in its plans (which the complaint estimates at more than 1 million). The novel suit contends that ERISA, the federal employment benefits statute, strips insurers of discretion to limit or restrict Viagra coverage in any way.
If ever there were a case proving that national health policy should NOT be made through litigation, this is it.
Whether health insurance should pay for Viagra -- and if so, how much -- is a complicated question. Why? Because Viagra, while effective in treating a bona fide medical disorder, also improves the sexual performance and satisfaction of people who are more or less normal. It is one of a handful of new medical technologies (the baldness medication Propecia is another) that are valued in the marketplace because they make consumers feel good -- more virile perhaps, or younger looking, or more sexually satisfied.
No one doubts that Viagra is appropriate for men who suffer from total impotence -- typically caused by an organic disorder such as diabetes or prostate trouble. For these patients insurance should cover Viagra just as it would cover treatment of the underlying disorder. But, let's face it, there are many more men who suffer from lesser degrees of impotence -- or none at all -- who nonetheless want to use Viagra because they believe it will enable them to have a firmer and longer-lasting erection. Nothing wrong with that -- provided, that is, that they pay for the Viagra pills out of their own pockets.
There's no basis for charging the cost of chemically induced better sex to one's HMO. Better sex might be part of the American dream, but it's not a legal entitlement. Not yet, anyway. Contrary to the Lieff-Anderson suit, there is no federal right to have the sexual responsiveness of an 18-year-old in perpetuity.
Why are insurers concerned about Viagra? Not because they're greedy (although they are), but because they can't trust physicians to write prescriptions for Viagra only when medically indicated. Patients demand that their doctors prescribe Viagra, and many doctors are obliging them -- which accounts for the fact that Viagra prescriptions are currently being written at a rate of 278,000 per week.
Insurers also know that if they reduce Viagra's cost to consumers -- which, obviously, is the practical effect of treating it as a covered health-plan expense -- consumers will use too much. And at $10 a pill, overutilization on a broad scale will raise insurance costs, forcing insurers to raise premiums (and co-payments or deductibles) or reduce other, more medically necessary health coverage.
What are the health plans doing to restrict utilization? Some have said they will cover Viagra, but only if the patient is diagnosed as having organic, as opposed to psychologically caused, impotence (Cigna Healthcare and Blue Cross of California). Others decline to pay for Viagra currently, but are weighing coverage policies that will be announced in the next two months (Aetna, Prudential and Oxford). And all insurers that cover Viagra restrict coverage to a specified number of pills per month (typically six or seven).
The Lieff-Anderson lawyers say that all restrictions on Viagra coverage are illegal because they violate the fiduciary duty that ERISA imposes on insurers. Under this view, if a physician writes a prescription for Viagra, the insurer must cover it -- no questions asked. According to Anderson Kill's Steven Cooper, an insurer's denial or restriction of Viagra prescriptions amounts to "regulation of sexuality."
But that's absurd. By limiting Viagra prescriptions, insurers aren't regulating sexuality -- after all, the disappointed consumer can still buy the drug with his own money -- they're just declining to subsidize sexuality. The better legal argument is that ERISA's fiduciary duty, far from barring restrictions on coverage, actually requires insurers to take reasonable measures to guard against overutilization of covered treatments.
An old joke has it that man was created with the ability to think and to have an erection -- but with only enough blood to perform one of these functions at a time. Apparently, the Lieff-Anderson lawyers were quite excited when they drafted their Viagra suit.