April 2016 Ask the Expert: Legal Concerns
Breast cancer isn't only a medical issue. It can also come with a variety of legal issues. Knowing more about laws related to treatments, insurance, employment and other topics can help you get the best care while protecting your family, your money and your career.
In April, a Living Beyond Breast Cancer expert, lawyer Stephanie Fajuri, JD, answered your questions about legal concerns related to breast cancer.
Remember: we cannot provide diagnoses, medical consultations or specific treatment recommendations. This service is designed for educational and informational purposes only. The information is general in nature. For specific healthcare questions or concerns, consult your healthcare provider because treatment varies with individual circumstances. The content is not intended in any way to substitute for professionalcounseling or medical advice.
There are a number of ways to find a lawyer who can help you. The Cancer Legal Resource Center (CLRC)
- provides information and resources on cancer-related legal issues
- provides referrals to local legal aid organizations and lawyer referral services
- does its best to connect patients with attorneys in their area who have agreed to give free consultations to clients referred by the CLRC.
You can contact the CLRC at 1-866-THE-CLRC or submit an intake online at clrcintake.org.
Or, you can contact
The Women’s Health and Cancer Rights Act, also referred to as WHCRA, is a federal law that was passed in 1998. It provides certain protections and coverage to patients who chose to have breast reconstruction surgery after a mastectomy (for any reason, not just breast cancer!).
WHCRA was actually written as an amendment to another federal law, the Employee Retirement Income Security Act (ERISA), which only governs health insurance plans provided by private employers. That means that not only does WHCRA not apply to Medicare or Medicaid, it also doesn’t apply to insurance plans purchased directly by a consumer herself.
You can also get involved in ongoing advocacy to support changes to Medicare lymphedema coverage. The Lymphedema Treatment Act is an active bill that would expand access to lymphedema coverage under Medicare. For more information on how to get involved, visit lymphedematreatmentact.org.
You may or may not be entitled to some workplace protections under the law, depending on the size of your employer, which state you live in, and how long you’ve worked for your employer.
First, the Family and Medical Leave Act (FMLA) is a federal law that provides up to 12 weeks of unpaid job and health benefit protection for workers who need to take time off from work for their own serious health condition or to take care of a sick family member. You might be eligible for FMLA leave if you have worked for your employer for at least a year, worked 1,250 hours in the last year, and work for an employer who has at least 50 or more employees within 75 miles of where you report to work.
It’s important to remember that your employer is not required by law to pay you during your FMLA leave, and your employer also does not have to hold your job open for you indefinitely.
Maybe you don’t need to take time off, but instead need some changes to your work environment to help you do your job better or make it more manageable. In this case, you might have the right to request reasonable accommodations from your employer under the Americans with Disabilities Act (ADA), as long as you work for an employer with at least 15 or more employees. The ADA provides protection from discrimination in the workplace and gives workers with disabilities (including cancer and the effects of cancer treatment) the right to request help or changes to the work environment, as long as the requests are not too costly or difficult for the employer.
If you work for a smaller company, you should check your state fair employment law (or contact the Cancer Legal Resource Center and we can look into it for you) to see whether your state offers protections for people who work for employers with fewer than 15 employees. It is important to request changes before your work performance suffers! Employers who do not know that you need help are still allowed to take negative employment actions against you. For example, if you know you might need some flexibility with your schedule to attend appointments or to account for days where you might be recovering from treatment, you might want to ask for that flexibility before you are written up for being absent or late.
Whether you or your employer is covered by any or all of these laws, your employer can always provide you with more protections or rights than the law requires. Check your employee manual or check with your human resources representative to learn what kinds of policies your employer has. You might be pleasantly surprised!
If your doctor did not follow the appropriate standard of care for your situation or made a mistake, he or she might have committed negligence or malpractice. You should talk to a local medical malpractice attorney about this as soon as possible, since medical malpractice suits are generally subject to very strict time limits, called statutes of limitations. In some states, the statute of limitations is as short as 1 year from the date you were harmed.
Most medical malpractice attorneys take these cases on a contingency basis, which means they only get paid if they win your case. Because of this, they often look for cases that are likely to be successful or have a high chance of awarding a large amount of monetary damages. They also consider any caps your state might have on damages for a medical malpractice claim.
How much money you might recover could depend on
- how bad the side effects were and how long they lasted
- the amount of medical bills you received to fix or treat the side effects
- how it affected your ability to work or earn money
- how much pain and suffering you experienced
- a number of other factors
For cases like this, both attorneys and patients sometimes decide that going through an exhausting lawsuit might not be worth it if the reward would be minimal.
If you are concerned your doctor might mishandle the treatment of future patients, another option instead of filing a lawsuit is to file a complaint with the medical board in the state where your doctor practices. The medical board then holds an investigation to see whether there was any wrongdoing. Though you won’t receive money for filing a complaint with the medical board, it can be a good way to make sure you are alerting the authorities about possible misconduct by a doctor. It could also prevent harm to future patients. For more information about how to file a complaint, contact your state’s medical board or the Cancer Legal Resource Center.
It depends. You might be eligible to take job-protected medical leave under FMLA for up to 12 weeks (see the answer to question 3, above), even if you are a part-time employee.
Maybe your part-time hours are too low to qualify you for FMLA or your employer is too small to be covered by the law. In this case, you might be able to ask for time off for treatment as a reasonable accommodation under the Americans with Disabilities Act or your state’s fair employment law. Whether or not taking time off for treatment is “reasonable,” or whether the amount of time you need is “reasonable” will depend on your specific situation with your specific employer. Some employers might allow their part-time employees to take medical leave. Others might not have the capacity to allow for such leave, especially if your position is highly specialized or you work for a very small company.
Unfortunately, it is not uncommon for patients going through cancer treatment to be forced to leave their positions if they are not eligible for job-protected medical leave or if their treatment requires more time off than their employer can give them. If you think that your employer might be discriminating against you or not following the law or their own policies, you might want to consider talking to an employment attorney.
Yes, it is possible. These types of claims are called “defective product liability” claims. Most prescription and over-the-counter drugs have possible serious side effects. But if you had bad side effects and your doctor, pharmacist, and any written labels, packaging, or inserts did not warn you about them, you might be able to file a claim on the basis that the product failed to provide adequate warnings or instructions.
Sometimes, patients who have all had the same injury band together to sue a pharmaceutical company in a class action lawsuit. To win this type of claim, you have to show that a drug has dangerous side effects, that you experienced some sort of injury, and that the injury was caused by the drug's side effects. Consult an attorney who specializes in pharmaceutical product liability for more information.
Maybe. Whether you can get your remaining student loans forgiven will depend on a number of factors. First, you can get certain types of student loans forgiven through the Department of Education Disability Discharge program. This process only applies to William D. Ford Federal Direct Loan Program loans, Federal Family Education Loan (FFEL) Program loans, Federal Perkins Loan Program loans or TEACH Grant service obligations. Next, you have to be “totally and permanently disabled,” which means you can show one of the following situations applies to you:
- You’re a veteran with a service-connected disability that makes you unemployable
- You’re receiving Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) and you can submit a notice of your award that states your next scheduled disability review will be within 5 to 7 years from the date of your most recent SSA disability determination
- You can submit a certification from your doctor that you are totally and permanently disabled
Keep in mind any amount over $600 that is forgiven will be reported to the IRS as countable income for the tax year in which the loans are forgiven. For more information about the federal student loan disability discharge program, visit disabilitydischarge.com.
If you have private loans or other loans that are not listed here, check with your loan servicer directly to learn if they have their own disability discharge program. Another good resource is studentloanborrowerassistance.org.
It depends on what the language of your long-term disability insurance policy says. Private long-term disability policies are bought directly from an insurance company or offered as a benefit through your employer. Most of these policies require beneficiaries (the people who receive benefits from a policy) to apply for Social Security Disability Insurance (SSDI) in addition to applying for their private long-term disability benefits.
Many people are surprised to learn that when they are deemed eligible for both their private plan’s benefits and SSDI, their private benefits are “offset” by the SSDI benefits. For example, let’s say you first apply for your private long-term disability benefits and are told you are eligible to receive $1,500 per month in benefits. Then, you apply for SSDI and are awarded $1,200 per month. You are most likely NOT entitled to receive $2,700 per month ($1,500 + $1,200). Instead, depending on the language in your long-term policy, you’re likely eligible for a total of $1,500 per month, made up of $1,200 from SSDI and $300 from your private policy.
So, if you apply for SSDI and are awarded back benefits, you might owe some (or all) of those back benefits to your private disability plan if you were receiving private long-term disability benefits at a time when you were determined to be eligible for SSDI. The offsetting provision doesn’t go away just because you applied for SSDI late, it just becomes retroactive. To be sure about whether or not you owe your long-term policy provider any of your SSDI back benefits, check the language of your policy. This information should be in your Summary Plan Description.
Your employer is not required to continue to pay for your insurance coverage after you leave the company. But depending on how many employees there were at your place of employment and what state you live in, you likely should have received notice about your ability to continue your health insurance on your own through COBRA (the Consolidated Omnibus Budget Reconciliation Act).
COBRA is a federal law that allows people who meet certain guidelines to keep the same health insurance they had under their employer (or spouse’s employer) for a limited amount of time, even if they experience an event that would otherwise have ended their coverage (like, for example, getting laid off). Eighteen months of COBRA coverage is usually available to those who lose or leave their job at a company with 20 or more employees. Many states offer “mini COBRA” plans for employees of smaller companies.
If someone is eligible for COBRA because she was laid off, her former employer must notify the health plan administrator within 30 days of her employment being terminated. Within 14 days of being notified, the health plan administrator has to provide the woman with a notice about her rights to continuation of coverage and how to elect COBRA coverage. At that point, the former employee has 60 days to decide whether to elect COBRA coverage. The good thing about COBRA is that it gives you the opportunity to stay on the exact same health plan you were on before, so there is no gap in coverage, your network remains the same, and you do not need to worry about rescheduling appointments that you might have already made. The downside is that the insured person becomes responsible for paying the full price of the health insurance premiums, plus administration costs (without the employer contribution she might have been used to). For more information about COBRA, visit dol.gov/ebsa/publications/cobraemployee.html.
If COBRA is too expensive, getting laid off also qualifies you for a special enrollment period to buy an individual health insurance plan through the federal or state health insurance marketplaces. For more information about buying insurance through the health insurance marketplace, visit healthcare.gov.
Workers’ compensation provides lost wages, disability benefits and medical benefits to employees who were injured on the job. Though we often think of workers’ compensation as providing coverage for accidents that happen at work, it often covers occupational illnesses, too. Whether your employer’s workers’ compensation program would cover your cancer diagnosis would likely depend on whether you can prove you were exposed to cancer-causing substances at work, and whether there is a link between those cancer-causing substances and the type of cancer you developed. You have to be able to show a clear connection between your job and your illness. Workers’ compensation laws generally provide employers with immunity from private lawsuits by employees, except in limited circumstances. Consult a workers’ compensation attorney, your state’s workers’ compensation program, or both for more information.
Additionally, the Occupational Safety and Health Administration (OSHA) is the federal agency responsible for investigating complaints about workplace safety. If you think you might have been exposed to cancer-causing substances at work, you might want to file a complaint with OSHA. Also, the National Institute of Occupational Safety and Health (NIOSH) is a good resource for more information on occupational cancer.