Doctor takes sides with plaintiff
The parents of a girl with cerebral palsy sue when their health insurer abruptly cuts coverage.
As a 58-year-old family physician, Dr. L has seen many changes in the health-care system. Foremost among these was the increasing volume of documentation required to get care for his patients, especially those with special needs. He often found himself mired in disputes over patient care with the HMOs in his area.
One of Dr. L’s patients was the daughter of a state sheriff’s deputy. Born with cerebral palsy, she needed regular physical, occupational, and speech therapy, all of which were available under her father’s health insurance plan. Dr. L initiated the recommended therapies and followed the girl’s condition over the next three years. According to later testimony, she had shown encouraging signs of progress.
After three years, the sheriff’s department switched its health insurance plan to an HMO that emphasized managed care in the form of “medical case management.” Dr. L, who had a contract with the HMO, was able to continue as the child’s physician.
Initially, she continued to receive the special care that had been provided under the previous health plan, but after two years, there was a sudden change. The parents were notified that their daughter was no longer eligible for the occupational, physical, and speech therapy she had been receiving and that she would be enrolled in the “regular benefit program” immediately.
Dr. L felt that the withdrawal of special therapies was completely inappropriate in view of the child’s progress and advised her father to appeal the HMO’s decision. The father spoke with an HMO representative, who confirmed the bad news. Over the next six months, the parents watched in dismay as their daughter’s progress halted and her condition deteriorated. Dr. L and the parents attributed this decline to the cessation of her previous therapies. The parents contacted a plaintiff’s lawyer.
After carefully reviewing the chart, the lawyer concluded that the HMO had violated its own policy, which required a “thorough and systematic examination to ascertain when maximum potential is reached” before removing a patient from any special therapy.
Dr. L was asked to appear as a plaintiff’s witness in the lawsuit against the HMO, in which the parents claimed “denial of necessary services” and damage to their daughter. He was not surprised when the proceedings led to the revelation that the HMO had cut back coverage to more than 100 other children in similar situations.
Dr. L testified that his patient’s condition had not stabilized before her therapy was discontinued and that it was just as important as it had been when she was younger. He characterized the HMO’s actions as an overly aggressive cost-cutting maneuver.
Other evidence showed that HMO executives received financial rewards based on the amount of money they were able to cut from existing programs (the removal of children from the medical case-management program was estimated to save $74 million).
Perhaps the most explosive testimony was provided by an HMO supervisor who said he told a corporate executive that patients had complained about their removal from the program.
The witness said the executive had replied, “When you give a dog steak and then take it away in exchange for hamburger, he’s not happy.” A collective gasp was heard throughout the courtroom. When he took the witness stand, Dr. L testified regarding the child’s suffering as a result of the denial of special services. In direct contradiction, the girl’s neurologist, an employee of the HMO, testified that she had not regressed or suffered any subsequent emotional distress.
Because of discovery violations and concealment of company documents, the judge ruled that the HMO had to admit liability and could defend only on damages.
The jury returned with a $79.6-million judgment against the HMO, $78.5 million of which was punitive damages. The plaintiff’s lawyer collected his share (an estimated $26 million), and the parents selected their own physician to provide care for their daughter in a private-pay arrangement.
Plaintiff’s lawyers have begun to concentrate on a new target — the deep pockets of the HMOs. The record verdict in this case likely set off a feeding frenzy within the plaintiff’s bar as tort reform continues to dry up sources of million-dollar verdicts against clinicians.
This type of case puts clinicians in the unusual role of corroborative witnesses as to the effects of denial of medical care. It also provides the opportunity to vent some long-simmering frustration against HMO cost-cutting policies.
Sometimes, a single piece of emotionally charged evidence can affect a jury more than a mountain of statistics. The jurors in this case immediately recognized the heartless attitude reflected by the HMO executive’s remark and punished his employer severely. In malpractice cases, jurors often have difficulty following the complexities of medical testimony, but they are quick to pick up on the more common human elements, such as an unsympathetic attitude toward a troubled patient.
Although clinicians are afforded considerable credibility at the start of a lawsuit, they can squander it as testimony develops by ignoring the human side of medicine and failing to come across as the competent, caring, and compassionate clinicians that every juror wants to see.
Most clinicians do not relish the opportunity to serve as a codefendant with an HMO in a “denial of care” lawsuit.
Their role in such cases is more often determined by the legal stragegy of the plaintiff’s lawyer than anything else. The circumstances in this case and the dollar amount of the claim made it unnecessary to include Dr. L as a defendant in the lawsuit. Clinicians can reduce the likelihood of being included in such a suit by preserving their traditional role as patient advocate.
Older clinicians like Dr. L have witnessed dramatic changes in American health care, and the next 20 years is likely to produce even more. One factor that is likely to remain constant, however, is the presence of plaintiff’s lawyers with an endless variety of malpractice lawsuits.
Surveys show that the public is ambivalent about medical lawsuits. Lawyers take this attitude as permission to create new causes of action within the laws that stream out of state and federal legislatures. This perpetuation of medically related litigation is likely to continue to burden the health-care system until some sort of single-payer system is introduced.
As it stands now, litigation might be replaced by a tribunal system of compensation along the lines of worker’s compensation or perhaps the New Zealand scheme of no-fault injury compensation. This would allow the resources presently burned up in defending lawsuits to be used to correct system deficiencies and improve patient safety.