Physician and Patient Lack Standing to Pursue HCR Challenge

August 4, 2011 ( – An appellate court has affirmed a lower court’s dismissal of a challenge to the Patient Protection and Affordable Care Act for lack of standing of the plaintiffs.

The 3rd U.S. Circuit Court of Appeals agreed that Mario A. Criscito, M.D., a licensed New Jersey physician; “Patient Roe,” a patient of Dr. Criscito’s; and New Jersey Physicians, Inc., a non-profit corporation that “has as a primary purpose the protection and advancement of patient access to affordable, quality healthcare” failed to plead adequately injury in fact and, therefore, did not meet their burden to demonstrate standing.  

The court noted in its opinion that the only allegations pertaining to any injury in fact suffered by Patient Roe are that Roe pays for his own health care, and before Roe pays, he chooses his doctor and his method of payment. It provides no specifics as to whom Roe chooses or how Roe pays.   

The court ruled that Roe fails to set forth any current “actual” “concrete and particularized” injury. There are no facts alleged to indicate that Roe is in any way presently impacted by the Act or the individual mandate to secure health care insurance or pay a penalty. In addition, Roe’s allegations do not establish that a future “concrete and particularized” injury is “imminent.” As an initial matter, the complaint is entirely silent as to whether Roe will be a non-exempt “applicable individual” subject to the mandate’s requirement to obtain “minimum essential coverage” in 2014. Roe will continue to be free to choose “who and how” to pay for his health care needs, including by paying for those needs out of his own pocket.   

The court recognized that the individual mandate may, impact Roe depending on the precise “who and how” he chooses, but absent more specific allegations, it cannot be concluded that there is a realistic danger or genuine probability that Roe will suffer a cognizable imminent injury resulting from the individual mandate.  

Likewise the court found that Dr. Criscito failed to meet the burden of demonstrating injury in fact resulting from the individual mandate.  

The plaintiffs also do not plead any facts to demonstrate that Dr. Criscito will be injured by the Health Care Act’s employer responsibility provision. The court noted this provision only applies to employers that have at least fifty full-time employees, and the plaintiffs’ complaint fails to specify how many employees work for Dr. Criscito.   

The opinion in New Jersey Physician’s Inc. v. Obama is here  

Recently, a federal district court moved forward claims of uninsured plaintiffs in a challenge to the federal health care reform law, while saying the plaintiffs who have health insurance lack standing (see Uninsured Can Move Forward in HCR Challenge).  

A challenge by the Thomas More Law Center has reached the U.S. Supreme Court (see Law Center Takes Health Care Challenge to Supreme Court) and a complaint by 26 states is working its way through the judicial process (see Judge Sets Florida HCR Challenge Hearing Date).