A New Court Ruling in Favor of Electronic Waveform Labs, the Makers of the H-Wave® Instrument, Has Far Reaching Industry Impact

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Judge Denies Utilization Review Company EK Health’s Attempt to Dismiss Suit for Disparaging and Unilaterally Denying Coverage for Electronic Waveform Lab’s H-Wave® Treatment.

This case has industry wide ramifications for those organizations who seek to control, beyond the statutory rules, the utilization review process.

Utilization Review (UR) doctors and EK Health, a large provider of UR services to insurance companies, are defendants in a lawsuit filed last year alleging that they conspired to deny coverage for use of the H-Wave device, disparaged the device to others, and intimidated prescribers. The Complaint filed by Electronic Waveform Lab, Inc. (Case # BC467496 filed at LA Country Superior Court), manufacturer of the H-Wave® Instrument, alleges ongoing Violations of the Cartwright Act, Intentional Interference with Prospective Economic Advantage, and Defamation/Trade Libel.

The defendants, represented by Gordon & Rees, moved to strike the entire complaint under the anti-SLAPP statute. After reviewing the evidence submitted by the plaintiff, January 27, 2012, Judge Michael L. Stern denied the defendants’ motion. He found that “plaintiff has offered sufficient evidence to show a probability it will prevail at trial on its claims.”

“Plaintiff furnish[ed] several declarations from physicians’ offices supporting its claims,” the Judge wrote; in addition to expert testimony from Susan Honor-Vangerov the former Manager of State of California Division of Workers’ Compensation Medical Unit. According to Judge Stern, Ms. Honor’s expert testimony demonstrated “that the defendants’ actions go beyond their review capacity and outside their opinion-rendering or decision-making powers.”

This case has industry wide ramifications for those organizations who seek to control, beyond the statutory rules, the utilization review process. H-Wave’s counsel, Nicholas Roxborough and Joseph Gjonola of Roxborough, Pomerance, Nye & Adreani stated: “We are proud to have performed this great service for H-Wave. What makes this even more interesting is that H-Wave is widely used by the ‘rich and famous’ (Kobe Bryant, The Green Bay Packers Super Bowl Team of 2011, and so on). In other words, H-Wave is something that employers, who really want their employees to get better, will use at the drop of a hat. But organizations like EK Health appear to be partially in existence to slow down the expenditure of these monies that actually could result in the ability of many injured employees to return to work.”

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Michael Heaney
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