Thomas McCutcheon

The United States Supreme Court is about to hear a case regarding the constitutionality as passed by Congress during the Obama administration. There is a lot of talk about pre-existing conditions and health insurance in the news. As personal injury lawyers we see insurance companies arguing every day that people who are injured had a pre-existing condition that either contributed to or entirely caused their injury. If they are successful, they don’t have to pay as much money.

In the days before the ACA (Affordable Care Act) we would often see people injured on the job lose that job. With the loss of that job went the loss of their family health insurance coverage. When those people or members of their family had pre-existing conditions such as diabetes, cancer, heart disease or hepatitis or any variety of conditions that a health insurance company didn’t want to insure those people could not buy health insurance that covered those pre-existing conditions.

People who don’t have health insurance have a very difficult time getting treatment for chronic conditions. About the only way an uninsured person can get treatment is to pay out of pocket or go to the emergency room and neither are long term solutions. It was literally heartbreaking to see a family where the mom couldn’t get treatment for a disease because they could not get health insurance.

In 1974, Congress passed ERISA. Nobody likes Congress. Mark Twain said “suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself”. ERISA protects insurance companies from being sued for failing to provide treatment that your doctor wants you to have but they don’t want to pay for. If your health insurance plan is through your employer, you can’t sue them for money damages because you or a loved one didn’t get the treatment needed because the insurance company denied it, UNLESS you are a member of Congress because Congress exempted themselves from ERISA.

Obviously insurance companies do not want to insure people they know have a pre-existing condition or know are at risk of developing a chronic condition. The Affordable Care Act in its current form provides protection for people by requiring an open enrollment period during which those people who lose their insurance the opportunity to buy insurance even though they have a pre-existing condition. We may see that change in the next few months.


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