U.S. Judge Asserts Need For More Viagra Coverage
Huge Sums at Stake Over 'Lifestyle Drug' Claims
By Michael Grunwald
Washington Post Staff Writer
Saturday, March 27, 1999; Page A03
PHILADELPHIA—David Scholl is probably the only federal bankruptcy
judge who takes his lunch to work every day in the same paper bag. But
he has always been an unusual jurist, a white guy with a black wife and a
Puerto Rican son, a former Lutheran who belongs to a laying-on-hands
Messianic Jewish synagogue, a technophobe who has written 1,100
opinions without the aid of a computer.
But now Scholl is doing something unusual even by his standards. He is
preparing to file a class-action lawsuit against the federal government,
arguing that his health plan ought to cover more than four Viagra pills a
month. Even federal judges have needs, he says. And so do other federal
employees who suffer from erectile dysfunction but cannot afford to pay
$10 every time they want those needs satisfied.
"Look, this is an embarrassing situation for me, but I'm not going to run
away from it," said Scholl, 54, a former legal aid lawyer who presides over
U.S. Bankruptcy Court in Philadelphia. "I see this as a way to help a lot of
people in need."
Viagra was approved for use as an anti-impotence drug one year ago
today, and the prospect of a federal judge exposing his boudoir difficulties
in court papers is just the latest sign of how the diamond-shaped blue pills
have revolutionized sexual mores. Pfizer Inc. sold nearly $800 million
worth of Viagra last year to more than 4 million men, and it is now on the
market in 54 countries.
But when Scholl says that even judges have needs, and that he hopes to
help others in need, he is raising questions that America has yet to answer:
Do men really need Viagra? If so, how much do they need? If not, should
insurance pay for medicine that merely improves the quality of people's
lives? And who should pay for it?
With several lawsuits already pending against health plans over their Viagra
policies, and with a flurry of other so-called lifestyle drugs going on the
market--and with health care costs starting to shoot up again after several
years of relative stability--huge sums of money are riding on those
questions.
Pfizer estimates that 40 percent of American health plans cover at least
some Viagra pills; a poll last year by the Kaiser Family Foundation found
that 49 percent of Americans believe Viagra should be covered. Stephen
Madra--an attorney for QualMed, Scholl's health maintenance
organization--said that is fine, as long as they realize they will end up
footing the bill.
"Look, the judge is doing a courageous thing," Madra said. "The problem
is, if we say we'll pay for Viagra, everyone in the plan is going to pay more
for their premiums. These costs are always passed through to consumers."
Scholl made his name in legal aid as a consumer crusader, arguing two
consumer-rights cases before the Supreme Court. He battled to make auto
repossession illegal, and he even joined the now-defunct Consumers Party.
Nevertheless, the 3rd U.S. Circuit Court of Appeals appointed him to the
bench in 1986. He has presided over some unusual bankruptcies--a
rapper from Tha Dogg Pound, a serial killer, a blue-chip law firm--and he
has developed a reputation as an efficient and prolific judge. But he has
never attracted much attention in public life.
Then again, his private life is more interesting.
Scholl and his wife, Portia, are an odd couple. They met when she was a
client at his legal aid office, and they moved in together a week after their
first date. He comes off as an affable nerd, with a comb-over, round
glasses and a nasal voice. She is a former social worker who sounds more
like a blues singer, an intense Bible quoter who has moved the family from
church to church before settling on born-again Judaism. He just bought a
beat-up '85 Honda; she drives a shiny red Cadillac. They have a biological
daughter, Tracy, 24, and a Puerto Rican son, Buddy, 14, whom they
adopted after he was abandoned by one of Scholl's drug-addicted clients.
Now they are going public with their sex life. They warned early in a long
interview that they feel strange talking about it, but fair warning: That did
not stop them. They quickly volunteered that Scholl had problems in bed
for about six years, problems they attribute to his blood-pressure
medications, or perhaps to an old prostate infection. Either way, it was a
frustrating time.
"It was bad," Portia said, her tone as stern as, well, a judge's. "Real bad."
Scholl had shied away from the injections, implants and penile
suppositories that used to be prescribed for impotence. But in May, his
doctor--who happens to sit on QualMed's board--prescribed Viagra.
Suffice to say that the Scholls are satisfied with the product.
"Mmmm-hmmmm," Portia purred. "It's gooood." "Well, it's not magic,"
Scholl pointed out. "It doesn't work if you're not in the mood."
"Oh, when are you ever not in the mood?"
Scholl tried to get QualMed to pay for his pills, but at the time, the HMO
did not cover Viagra at all. He got nowhere arguing with plan
administrators. So in September, he filed a class-action suit against
QualMed, claiming it had a duty to cover FDA-approved drugs prescribed
as "medically necessary" by its doctors.
"QualMed has denied, restricted or conditioned insurance coverage for
Viagra for one simple reason--to save itself money," the complaint said.
QualMed changed its policy to four pills a month in December--Scholl is
convinced that the move was prompted by his litigation--and the judge
temporarily dropped his suit because he had not exhausted his appeals
with the federal Office of Personnel Management. But now he is about to
refile, with a switch: He plans to sue OPM as well as QualMed, on behalf
of all impotent federal employees. Four times a month, he says, is just not
enough. Even for a federal judge.
"I think eight is fair. I'd settle for eight," Scholl said, as his wife raised an
eyebrow. "It's just a value judgment, really. To me, sex is a pretty
important part of life."
Several other HMOs have been sued over their Viagra policies--including
Aetna Life & Casualty Co., Prudential Insurance Co. and Kaiser
Permanente--but none of the cases has gone to trial yet. Scholl's claim will
be the first by one of the 9 million federal employees who receive health
benefits; an OPM spokeswoman said the plans in the program make their
own decisions about medical coverage, subject to OPM review.
These decisions are value judgments, and given estimates that 30 million
men may be impotent, the values can get steep. Scholl notes that QualMed
already spends thousands of dollars on growth hormone injections for
Buddy; is height more important than sexual satisfaction?
On the other hand, Madra notes that most plans do not pay full freight for
contact lenses; is sexual satisfaction more important than sight? And how
much sexual satisfaction should be subsidized by other participants in the
plan?
"I'm not saying that the judge is making a lifestyle choice, but he's a
relatively healthy man," Madra said. "Hey, I've got a sense of humor. If we
could talk off the record, I might tell you that the judge's case wouldn't
stand up in court."
Ah, yes. The jokes. The puns. Scholl knows they've been floating around
ever since his case hit the local press.
His children, naturally, are mortified; kids don't like to think about their
parents having sex, much less trying but failing to have sex. But Tracy
Scholl, an au pair who plans to go to graduate school next year, says she
respects her father for stepping forward for the impotent; she knows most
men wouldn't have the nerve.
"I'm sure the people who are laughing at him are laughing all the way to the
doctor's office," she said. "Every guy his age uses Viagra. They just don't
talk about it."
The Scholls talk about it. And they talk about "it." They say they used to
avoid the topic, and it hovered around their marriage like an unscratched
itch. The whole ordeal, Portia says, has brought them a lot closer.
"My man is like the knights of old; he can slay any dragon before him," she
said, squeezing his hand. "He's fearless. This proves he's fearless."
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