Under American law, two parties can agree to pay for a service or enter into any other contract. Under extreme circumstance, an agreement can be said to be so unfair as to be unconscionable, or be unenforceable because it involves illegal conduct or conduct which offends public policy. However, in most contract cases including those involving health insurance, the court's task is to determine what was intended, first by looking at the written agreement.

Thus, the first task for any patient or family member is to assemble the relevant papers and to review what the health care agreement provides. The chief areas of dispute are as follow

1) is the treatment medically necessary and therefore should the healthcare provider be required to pay for it,

2) may the patient choose a hospital or physician,


 The healthcare policy typically states that the provider will reimburse for what is medically necessary.

20.21 Consider and Evaluate what the HMO says, though you do not have to accept It

In many cases, HMO's act unreasonably and for their own financial interests. Sometimes however, a patient may fail to understand medicine or the nature of the HMO. Initially, the HMO does not have to refer you to the physician or hospital that you would like or prefer. The very nature of the HNO is to achieve cost savings through negotiation and centralization of certain tasks. Thus, if the HMO has retained qualified hospital A to provide certain treatment, you may not simply opt for hospital B because you like it better, (or you may be called upon to pay additional costs for B) .

You do have a right to select a hospital, or more accurately participate in the selection process, if the particular physician or hospital is not as well-equipped to perform a task as your own. Thus you would need to demonstrate their selection's lack of, at least lesser qualification as compared with your choice.


Assuming the HMO is acting unreasonably, as a lawyer, one sees a somewhat strange phenomenon in how people approach the legal system. You may see a client send four letters and file a formal complaint over damage to a $125.00 dress. In a divorce, two combatants may spend hours arguing over disposition of a piece of furniture or a lamp. Yet sometimes people with real concerns, and family members of those with cancer are strangely passive. Certainly, if you believe a particular type of treatment is necessary, you should be aggressive in demanding . . Documents your concerns in a letter.


A letter to an HMO should outline the following:

1) the treatment which is needed, and has been rejected,

2) the medical justification for the treatment, attaching your physician letter of explanation, and any medical studies or other data you have located,

3) a statement that the plan member will suffer severe and irreparable physical injury as a result of the delay in treatment, and noting that such injury may have already occurred because of the HMO's delay,

4) noting that you are contacting an attorney to institute legal action as a result of the HMO's willful and deliberate disregard of the patient's health and well-being, and expect to institute legal action against the responsible individuals as well as the plan itself.

Consider placing particular responsibility upon the particular person who rejected the treatment. You should fight, and in most cases you will win. From an health insurer's point of view, they may want to limit certain types of health care costs, but will alter their position if the possibility of legal or other exposure exists. There have been several large verdicts against HMO's.


If an HMO fails to authorize treatment which you believe is medically justified, you could write to the following:

1) the HMO case manager,

2) his or her supervisor,

3) the state insurance commission who deals with health care issues,

4) the central office of the health insurer,

5) members of the board of directors of the HMO,

6) your local newspaper or radio station.

7) state assemblyman or representative,

8) an internet website dealing with this issue,

Generally form letters and copies receive less attention than the original. If you want action, address your correspondence to each of the above, or those who can help you. Letters should be direct but brief. No letter should be longer than a page, but do include some brief documentation supporting your position.


If an HMO refuses to authorize necessary treatment, you can contact an attorney to file a lawsuit. While it is preferable to have an attorney representing you, set forth below is a form of complaint designed for use by an individual representing himself.



Plaintiff :


vs : Civil Action



: Docket No.

Defendant :


1. Plaintiff resides at 43 Spring Street, Maplewood, New Jersey. Defendant is a health maintenance organization licensed by the State of New Jersey, with offices at 40 Broad Street, Newark, New Jersey.

2. Under a contract with the Defendant, Plaintiff is entitled to medical and hospital treatment with the costs of such services (less only deductibles) to be paid by the HMO.

3. Plaintiff has lung cancer. Only July 23, 1999, Plaintiff's physician recommended hospitalization to provide relief from pain associated with plaintiff's cancer. Such recommendation was reasonable and necessary or treatment of Plaintiff's condition.

4. Defendant HMO has failed to approve reimbursement to the appropriate medical and hospital providers for such treatment despite oral and written requests from Plaintiff and his physician.

5. As a result, Plaintiff has been denied medically necessary treatment. More particularly, as a result, Plaintiff has suffered substantial pain and his medical condition has deteriorated as a result of the HMO'S willful and deliberate refusal to perform its contractual obligations.

6. Plaintiff believes and therefore alleges, that defendant has constructed procedures to deprive plaintiff and others of the medical treatment to which they are entitled for the purpose of reducing its costs. Furthermore, Defendant HMO has concealed and misstated its reasons for denying treatment to delay and frustrate Plaintiff and his physicians from arranging for required medical services.The above conduct violates the terms of the Plaintiff's insurance contract, insurance statutes and other applicable law.

WHEREAS, Plaintiff demands judgment against Defendant for compensation damages, punitive damages, and injunction requiring Defendant to perform its contract and restraining it from further violating applicable insurance claims.


Plaintiff requests a trial by jury.

Dated: July 5, 2000 ___________________________________

Robert Patient

20. 71 Comment on the Form Complaint

2. This is based on New Jersey practice; practices vary from state to state. Generally, what a complaint does is explain who the Plaintiff and Defendant are where they are located, what the Defendant did wrong, how the Plaintiff was injured by the Defendant's acts, and what Plaintiff is seeking.

3. File the complaint with the court with the necessary filing fee, get a docket number or a copy of the complaint marked "filed", and serve that complaint on the Defendant. You can ask a local process-server or subpoena service to serve or hand deliver the complaint to the HMO.

4. You may wish to send the accompanying Letter to the Defendant

Enclosed please find a copy of the complaint which I have filed with the Superior Court. I confirm that as of this date, you have not authorized the treatment which I need. If this changes, please immediately call me and my physicians. If you have any questions regarding this Complaint, you may call me directly at 973-467-8040 though I may be retaining counsel shortly.


Howard Gutman is a New Jersey attorney based in Parsippany, New Jersey who has handled numerous legal claims involving lung cancer.   A member of a leading cancer support group, he has been an advocate for early lung cancer detection programs and is the author of the upcoming book, A Complete Guide to Lung Cancer, and the Lung Cancer Newsletter.

He is an honors graduate of Drew University, and graduate of the University of Michigan Law School, where he served as one of the editors of the School's Journal of Law Reform. The University of Michigan has been ranked as one of the top five law schools in the country.

Mr. Gutman clerked at a Wall Street law firm, and was employed by a large New Jersey firm before establishing his own legal practice. His cases have include lung cancer, mesothelioma, silicosis, asbestos, and sarcoidosis.    He has also appeared on Good Day New York and been interviewed by NBC Nightly News.

Contact Information

Howard A. Gutman, []973-257-9400 (all consultations are without charge)
Postal address
[]1259 Route 46, Troy Office Center, Parsippany, New Jersey 07054
Electronic mail
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This page is designed to provide information of a general nature.  For specific medical information, consult a physician, for legal advice, consult a qualified attorney.

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