KAISER SUED OVER VIAGRA; BURBANK MAN ATTACKS HMO'S ADS.

Byline: Ben Sullivan Daily News Staff Writer

In what is thought to be the first case of its kind in the nation, a 77-year-old Burbank man has sued his HMO for refusing to pay for the anti-impotence drug Viagra.

Attorneys for retired machinery worker Louis Marcil filed suit in Los Angeles Superior Court late Wednesday to force Kaiser Permanente to pay for the popular new medicine and to stop what they say is false advertising by the HMO.

Kaiser officials said Thursday that they have not seen the lawsuit, but insist they are not required to cover the drug even if a Kaiser physician has prescribed it.

Marcil, a longtime Kaiser member, was left impotent last fall after two years of radiation therapy to kill cancer cells in his prostate gland. The World War II and Korean War veteran said that before the treatment he enjoyed an active sex life with his wife of 52 years and that sexual intimacy was an important part of their marriage.

``We'd been having good sex all our lives,'' Marcil said. ``With six months of impotence it was a little rough around the house.''

When the Food and Drug Administration approved Pfizer Inc.'s Viagra in March, Marcil's physician recommended he try the drug.

After six months without, ``I told him one pill would be enough'' to get started, Marcil said.

According to the suit, Marcil's doctor wrote him a prescription for five Viagra tablets, which Marcil then tried to fill at Kaiser's Panorama City pharmacy.

But instead of his customary $7 co-payment for prescription medicines, the pharmacy charged Marcil $50 for the five pills.

In the suit, Marcil claims that if the health plan won't pay for Viagra, much of the HMO's marketing material aimed at recruiting senior citizens is misleading. Statements including, ``We will provide all of your health care'' and Kaiser ``physicians have autonomy,'' constitute false and misleading advertising, the suit states.

Emotional distress

Marcil is asking that Kaiser change its marketing material and pay for Viagra, and is seeking unspecified compensation for emotional distress.

Dr. Les Zendle, associate medical director for Kaiser Permanente in Southern California, said that while a physician may prescribe Viagra for a patient, that in itself does not mean the HMO must pay for it.

Zendle said Viagra is not on Kaiser's formulary, which is a list of drugs for which the HMO will cover most of the cost. Kaiser will still pay for nonformulary drugs if a physician deems them medically necessary, but in some cases a doctor will determine a drug is appropriate but not necessary, he said.

``One of the problems from a philosophical point is that with a drug like Viagra there isn't a clear line between medically necessary and non-necessary,'' Zendle said. ``What the physician evidently did not say (in this case) is that it's medically necessary for the patient.''

Zendle said Kaiser has paid for Viagra in several hundred other cases and that still more Kaiser patients pay for the medicine themselves.

Frank Darras, an attorney representing Marcil, said the distinction between medically necessary and medically appropriate is not made clear in any Kaiser literature or its member contracts.

Unique case

Legal experts say because Viagra is the first pill to effectively treat male impotence, the Kaiser case is unique.

``Do you need Viagra? I guess that's the real issue,'' said San Francisco attorney David Lee, a former chairman of the American Bar Association's committee on health care.

``Health plans have been upheld on this with some frequency, that they are not required to provide everything doctors might prescribe, especially in cases in which the therapy is experimental,'' Lee said. ``But I don't know if there have ever been situations comparable to Viagra.''

Lee said the case likely will come down to what Kaiser has said in its literature and contracts.

Kaiser is being investigated by the California Department of Corporations, which regulates HMOs, for its policy of not including Viagra among its basic drug coverage. Four state legislators have called on the department to pull Kaiser's license unless the HMO begins coverage.

Del Konnor, president of the Pharmaceutical Care Management Association, a trade group for managed-care pharmacy benefit managers, said that given the enormous societal interest in Viagra, more lawsuits are likely.

``This is not just a Kaiser Permanente problem,'' Konnor said. ``This is an issue that each plan has to address individually.''

Since Viagra's approval in March, several large health groups including Kaiser, Prudential HealthCare and Humana have said they will not cover the drug, citing alternately its high cost or safety concerns. Others, including Woodland Hills-based WellPoint Health Plans, will pay for a limited number of pills for their members each month.

CAPTION(S):

Photo

Photo: (Color) Louis Marcil, 77, seen here with his wife of 52 years, Venitta, is suing Kaiser Permanente for the HMO's failure to pay for the anti-impotence drug Viagra.

Tom Mendoza/Daily News