Los Angeles, CA (February 17, 2015)—A California Appellate Court has overturned the trial court decision in Electronic Waveform Lab v. EK Health Services, which held that State Fund’s utilization review process was “protected activity” under the California’s anti-SLAPP law. Electronic Waveform Lab is represented by Nicholas Roxborough and Joseph Gjonola of the Los Angeles based law firm Roxborough, Pomerance, Nye & Adreani LLP (RPNA).
The decision has industry wide ramifications and may open up the utilization review (UR) process to civil challenges where organizations improperly control it beyond the statutory rules, or use it to engage in tortious misconduct, according to plaintiff counsel Nicholas Roxborough.
In the matter of Electronic Waveform Lab v. EK Health Services, et al, Electronic Waveform Lab, Inc., the manufacturer of the H-Wave® device, alleged that State Fund, EK Health Services—a large UR services provider contracted by State Fund—and its UR physicians conspired to deny coverage for the H-Wave® device, disparaged the device to others, and intimidated prescribers. The suit also charged State Fund with creating a blanket policy to never approve H-Wave and utilizing EK Health and their so-called independent physicians to implement their policy to reject prescriptions for H-Wave in the treatment of patients’ injuries.
State Fund filed a motion to dismiss the entire complaint under California’s anti-SLAPP statute and won at the Trial Court. However, the Court of Appeal reversed, and in doing so, rejected the notion that UR in workers’ comp is an administrative process and further established that blanket UR denials are not “protected activity” under California’s anti-SLAPP statute. The court unanimously denied the anti-SLAPP motion, finding that UR failed to qualify as an “official proceeding” as required by the statute.
“State Fund, EK Health, and the UR physicians violated the law by utilizing State Fund’s blanket policy to deny the use of H-Wave devices in treating injured patients—physicians who are supposed to provide independent medical decisions,” explains Roxborough.
RPNA will be moving forward with its suit against State Fund, EK Health Services and its UR physicians to establish they conspired to try to put H-Wave out of business.
A copy of the appellate decision is available upon request.