Fen-Phen Again

According to one of the filings, “defendants designed and developed (a two-step process) which eliminates valid and legitimate claimants by first re-prioritizing claims and then (contesting) the basis of each beneficiary's claim through the use of 'medical practices questionnaires' in an attempt to eliminate each and every claim that remains.” For example, the law firm notes, one plaintiff who was diagnosed with moderate mitral regurgitation submitted his paperwork and was approved for benefit payments in September 2002, after undergoing an audit by the trust. In August 2003, however, the trust denied payment to this plaintiff because his electrocardiogram was reviewed by one of 13 doctors whose diagnoses are being challenged by the trust, based on the volume of claims they validated.

The law firm notes that the trusts prioritization scheme gives precedence to claimants who filed their claims without the aid of an attorney and requires claimants whose physicians attested to more than 20 claims to have their doctors personally fill out an 18-page “Medical Practices Questionaire.” Claimants must submit these questionnaires by Dec. 15, a particular hardship, according to representatives of Napoli, Kaiser, Bern, because nearly all the 83,700 claims filed were certified by doctors who attested to more than 20 claims.

Nearly 83,000 Fen-Phen users, including those whose claims have already been approved, may have their payments delayed or denied due to a new scheme instituted by the trustees of the Wyeth Settlement Trust, according to a lawsuit filed Nov. 5 by New York City-based law firm Napoli, Kaiser, Bern & Associates. The suit was filed on behalf of several individuals who are awaiting payment of damages from the trust, formerly known as The American Home Products Settlement Trust.

After a prolonged court case, a settlement was reached in 2002 that entitled Fen-Phen users to compensation for heart damage related to the drug's use. The Wyeth Settlement Trust was established to accept and process claims, and award benefits under an established formula.

The new suit, filed on behalf of some of Napoli, Kaiser, Bern's approximately 1000 clients, alleges that the trustees have frozen more than 90% of the remaining 83,000 claims, refusing to process them any further, in direct contradiction to the settlement, which called for a “first-in, first-out” processing order. According to the complaint, the trustees have adopted an arbitrary prioritization scheme, which means that the vast majority of legitimate claims may never be paid, even those claims that had previously been approved for payment. “Our clients, who have long-standing, significant injuries from the use of this medication, have met all medical and legal criteria for payment and their claims have been approved,” said Marc Bern, a senior partner at Napoli, Kaiser, Bern. “However, they have been told that their claims will not be processed and/or paid, due to a new 'claims integrity program' and a 'prioritization scheme' that, in effect, allows the trustees to pick and choose who will receive benefits.”

According to one of the filings, “defendants designed and developed (a two-step process) which eliminates valid and legitimate claimants by first re-prioritizing claims and then (contesting) the basis of each beneficiary's claim through the use of 'medical practices questionnaires' in an attempt to eliminate each and every claim that remains.” For example, the law firm notes, one plaintiff who was diagnosed with moderate mitral regurgitation submitted his paperwork and was approved for benefit payments in September 2002, after undergoing an audit by the trust. In August 2003, however, the trust denied payment to this plaintiff because his electrocardiogram was reviewed by one of 13 doctors whose diagnoses are being challenged by the trust, based on the volume of claims they validated.

The law firm notes that the trusts prioritization scheme gives precedence to claimants who filed their claims without the aid of an attorney and requires claimants whose physicians attested to more than 20 claims to have their doctors personally fill out an 18-page “Medical Practices Questionaire.” Claimants must submit these questionnaires by Dec. 15, a particular hardship, according to representatives of Napoli, Kaiser, Bern, because nearly all the 83,700 claims filed were certified by doctors who attested to more than 20 claims.