The Bill Cosby: Liability Requires Both Evidence and Due Process
Most clients who have an ERISA claim are frustrated and angered when the insurance company will not pay their claim because it says they can work even though they cannot. They understand the insurance company has a right to proof. However, they are surprised when they learn that a doctor who has never seen them gives an opinion that they can go back to work.
Typically, a doctor sitting in some other state reviews some of their medical records at the insurance company’s request and then gives an opinion the insurance company uses to deny the claim. The doctor may even be an employee of the insurance company who receives bonuses when the insurance company is more profitable. Or the insurance company may hire a vendor that does a lot of work for that company (and wants to keep that business), so it employs its own doctors to give such opinions.
While the insurance company has a right to fairly review any evidence, unfairness often creeps into the process. The claim procedure regulation is designed to protect the due process rights of claimants.
Experienced ERISA disability lawyers are very familiar with that claim procedure regulation, which sets the minimum standards for a fair review. Experienced ERISA lawyers are also familiar with the names of the doctors and vocational experts who regularly give the opinions that insurance companies want.
A recent situation involving Bill Cosby demonstrates the need for strong evidence and fairness in the process. The two go hand-in-hand.
Over two years ago, Bill Cosby was convicted of sexual assault. The original district attorney (DA) investigating the claims declined to prosecute. The district attorney based his decision on the fact that the accuser continued to talk with Cosby on the phone after the incident, she continued to meet with him in person after the incident, and she made recordings o conversations with him in which she tried to get him to make incriminating statements (which could be interpreted as an effort to get money out of him. The DA believed these facts would hurt her credibility. He told Bill Cosby's attorney that his decision meant Bill Cosby could not assert a Fifth Amendment privilege against self-incrimination in a civil lawsuit brought by the accuser.
During depositions, Cosby made several incriminating statements. He eventually settled the civil lawsuit for over $3 million.
Fast forward 10 years after the original DA declined to prosecute Cosby. A later DA decided to prosecute Cosby using the sworn testimony from his deposition. Cosby was convicted and sent to prison where he served about two years. However, he appealed the decision contending that the process was not fair. The Pennsylvania Supreme Court agreed, finding that Cosby's due process rights were violated by utilizing the deposition evidence. Thus, even though Cosby might have been guilty of the conduct alleged, he was not fairly treated by the system. The Cosby case is a good reminder that everyone has a right to due process.