Step 1: General Challenge
The attorney was advised that, independently of the specific aspects of this case, the insurance company’s restrictive clause on mental disorders could be challenged as discriminatory. The challenge could be made a fortiori in light of the diagnostic revision in this case. The principal basis of the general challenge was the vagueness of the term “mental disorder” that the policy intended to exclude. The policy document referred to mental disorder as “a mental, emotional or behavioral disorder.” That tautologic characterization does not constitute an operational definition and it is insufficient to guide a jury. The pertinent dictionary definition of “mental” is “diseased in the mind; mentally ill, as in ‘mental patient’.”3 Synonyms given for this definition of “mental” include psychical and psychological.3
Neither the dictionary definition nor the company’s characterization of the term “mental disorder” is sufficient to determine the status of bipolar disorder as a condition that may be excluded from coverage. That can be determined only by deconstructing the term through an analysis of how it is actually used. At least seven distinct operational meanings and usages of “mental disorder” can be stated. We tested each of these for their applicability to this case.
Meaning #1:The condition is a mental disorder because it is included in the DSM-IV.2 Bipolar disorder certainly is included in DSM-IV. This fact is not conclusive, however, as many disorders that would have been covered are included in DSM-IV. Examples are vascular dementia and Alzheimer’s disease. Thus, bipolar disorder does not qualify as an excluded mental disorder simply because it is listed in DSM-IV. This meaning of the term “mental disorder” is not sufficient. Moreover, the challenged policy did not stipulate this meaning of the term.
Meaning #2:The condition is a mental disorder because it is caused by an emotional factor. This meaning of the term “mental disorder” does not apply to bipolar disorder. Primary bipolar disorder has a high heritability index,4 whereas secondary bipolar disorder is, by definition, caused by neurologic or medical factors.5 Emotional factors are not established as causes of bipolar disorder any more than they are as causes of bronchial asthma or peptic ulcer or hypertension, which would be covered conditions. Thus, bipolar disorder does not qualify as an excluded condition within this meaning of the term “mental disorder.”
Meaning #3:The condition is a mental disorder because it is not caused by physical factors. This meaning does not apply to bipolar disorder. On the contrary, primary bipolar disorder has a recognized genetic loading4 as well as identified regional abnormalities of functional, macroscopic, and microscopic brain anatomy.6–8 Moreover, secondary bipolar disorder is, by definition, caused by pathologic factors such as cerebrovascular disease, a brain lesion, or hormonal disorders.5 Thus, bipolar disorder does not qualify as an excluded condition within this meaning of the term “mental disorder.”
Meaning #4:The condition is a mental disorder because there is no demonstrable brain pathology. This meaning is related to Meaning #3, and it does not apply to bipolar disorder. First, as just discussed, brain pathology is demonstrable in primary bipolar disorder,6–8 whereas secondary bipolar disorder is by definition caused by pathology affecting the brain.5 Second, this meaning of the term “mental disorder” is insufficient because certain medical conditions exist for which no consistent pathology is demonstrable. Examples include idiopathic epilepsy and migraine. Thus, this meaning of the term “mental disorder” is insufficient to qualify bipolar disorder as an excluded condition.
Meaning #5:The condition is a mental disorder because, per the policy, the major symptoms are “mental, emotional, or behavioral.” This meaning does apply to bipolar disorder. However, although this meaning may be necessary, it is not sufficient to qualify a condition as excluded under the disability insurance policy. For example, the major symptoms of post-head injury syndrome are “mental, emotional, or behavioral” but that condition would be covered by the policy. Likewise, the major symptoms of the frontal lobe dementias are “mental, emotional, or behavioral” but these dementias also would have been covered under this patient’s policy. In addition, the “mental symptoms” in bipolar disorder include cognitive features, especially frontal executive and attentional deficits, that cannot be ascribed simply to aberrant emotions or to maladaptive behaviors.9
Meaning #6:The condition is a mental disorder because the standard of care requires only “mental” treatment (ie, psychotherapy or counseling). This meaning does not apply to bipolar disorder. The standard of care for bipolar disorder specifically requires administration of a preventive, mood-stabilizing medication such as lithium, valproic acid, or carbamazepine. Formal psychotherapy for patients with bipolar disorder is recommended when the course of illness under drug treatment is unsatisfactory. In this respect, bipolar disorder is no different from bronchial asthma. Thus, bipolar disorder does not qualify as an excluded condition within this meaning of the term “mental disorder.”
Meaning #7:The condition is a mental disorder because it is one of the conditions the average person understands by that term. This meaning is often relied upon by insurance companies as an ad hoc definition that suits their purpose. Although insurance companies have succeeded in the past with this argument under contract law, it is plainly discriminatory and legally challengeable as arbitrary and capricious. No court would be interested in the opinion of the average person on other questions of medical classification and management, such as whether AIDS is or is not a contagious disease that requires quarantine. In litigation in the United States, that role is reserved for qualified experts.
In summary, bipolar disorder satisfies only 2 of the 7 meanings discussed above. Those two meanings (#1 and #5) are weak tests and they are not sufficient individually or together to qualify bipolar disorder as a mental disorder that could be excluded from disability insurance coverage.
Step 2: Diagnostic Review
At the time of litigation, the case record was consistent with the psychiatrist’s DSM-IV diagnostic coding 296.89, Bipolar II Disorder.2 This DSM-IV diagnosis is purely descriptive and it can apply to both primary and secondary presentations of bipolar disorder. Other features documented in the clinical record suggested a secondary form of bipolar disorder with a vascular, hypertensive etiology. These aspects were (1) late age of onset of bipolar features at age 55 years;10 (2) history of hypertension with unsatisfactory control since age 47 years;10 and (3) prominent antidepressant drug-induced neurotoxicity, such as severe tremor, myoclonus, and confusion. Such antidepressant drug-induced neurotoxicity is recognized not only with the early tricyclic antidepressant drugs but also with newer agents such as fluoxetine and trazodone, to which this patient was exposed.11–13 Patients at risk of this antidepressant drug-related neurotoxicity have subcortical cerebrovascular disease, affecting especially the basal ganglia (caudate nucleus, putamen, and globus pallidus)11 or pre-existing brain damage.13 Additional entries in the record were consistent with emergent hypertension-related brain disease. These included notations concerning profound apathy, inability to work in psychotherapy, personality change, and emotional incontinence.14
Based on this clinical evidence, a brain magnetic resonance imaging (MRI) scan was obtained. It showed typical hypertensive vascular pathology, with prominent lacunar infarcts bilaterally in the basal ganglia, and subcortical areas of leukoaraiosis or white matter hyperintensities. Such changes are typical of vascular mood disorders and vascular dementias.14 Follow-up neuropsychologic assessments further supported the impression of hypertension-related cerebrovascular disease. The patient’s full-scale IQ had declined from 116 2 years earlier to 95 at the time of this litigation, and his performance on a test of complex visual-motor coordination was markedly impaired. Moreover, his performance on that task was surprisingly worse with the dominant right hand than with the nondominant left hand. This pattern of bilateral impairment with reversal of functional dominance is consistent with patchy hypertensive cerebrovascular disease such as was revealed by the MRI scan.14
The patient does have a positive family history of mood disorder. His mother has a history of depression; a brother has been diagnosed with bipolar disorder and is treated with lithium; and a sister has experienced periodic recurrent depressions. This genetic background puts the patient at increased risk of bipolar disorder. However, the fact that bipolar features did not emerge until age 55 years suggests that a second factor (ie, cerebrovascular disease) led to the appearance of his bipolar features.10
All of these considerations led to a reassessment of the diagnosis. Although the experienced psychiatrist was aware of the patient’s hypertension, he had not strongly considered a vascular contribution to the patient’s difficult course of illness and to the switch to bipolar status. In retrospect, however, and with the benefit of new data from the brain MRI scan and the neuropsychologic testing, the diagnosis of a hypertensive vascular cause of the patient’s bipolar disorder was readily agreed to. The new neuropsychologic test results also were consistent with a prodrome of vascular dementia comorbid with the late-onset bipolar presentation.14 This revision of the diagnosis served the patient well in his challenge to the insurance company.
Step 3: Specific Challenge in the Particular Case
Based on the issues raised in the general challenge and on the diagnostic reassessment (Steps 1 and 2), a focused and specific challenge on behalf of the litigating patient was developed. The attorney was briefed on the nature of bipolar disorder, especially the secondary form that results from an organic condition like hypertensive cerebrovascular disease, with symptoms resembling those of primary bipolar disorder but accompanied by more prominent cognitive decline than is expected in primary bipolar disorder. The briefing also addressed the cardinal symptoms of bipolar disorder (ie, mood swings), manifest as depressive episodes and manic or hypomanic episodes with variable severity over time, and with mixed states characterized by simultaneous depressive and manic features also recognized. The highly recurrent form of bipolar disorder known as rapid cycling, which applied to this patient, also was addressed. Both the hypomanic and the depressive phases and especially the absence of enduring normal periods interfered with this patient’s ability to work and to concentrate normally. Those functional deficits were aggravated by the hypertension-related cognitive decline and apathy (clinically considered to be a prodrome of vascular dementia, which is a common complication of vascular depression).14
This three-step challenge altered the dynamic of the litigation, persuaded the insurance company to reconsider its position, and served the patient by facilitating a satisfactory negotiated settlement before a scheduled court hearing. The key strengths brought to the patient’s case were the general challenge (Step 1) and the diagnostic refinement (Step 2), and thus removal of the assumption that the patient suffered from a self-evident “mental disorder.”