Posts Tagged ‘cancer’

State Court Declines To Act On Medicare HMO Denial Of Care

DECEMBER 27, 1999 VOLUME 7, NUMBER 26

Gilbert Levy, like many Medicare beneficiaries, was attracted by the promise of HMO coverage for his Medicare benefits. The California man shopped carefully, and only signed up with PacifiCare Health Systems after he was sure that he would be able to choose his own primary care physician, and that he would be entitled to all treatment recommended by that doctor. Mr. Levy chose Empire Physicians Medical Group, and particularly Dr. Frankel, to be his primary physician. Then Mr. Levy got sick.

In October, 1996, Mr. Levy was diagnosed with lung cancer. Dr. Frankel referred him to PacifiCare’s oncology expert. That physician, Dr. George, advised Mr. Levy that the tumor was too close to his heart, and was therefore inoperable. According to Dr. George, the only choice for Mr. Levy was chemotherapy and radiation.

Dr. George was an oncologist, not a surgeon, and so Mr. Levy requested a second opinion. He chose Dr. Morton, a thoracic surgeon at John Wayne Cancer Institute. His primary care physician, Dr. Frankel, prepared the necessary paperwork for the consult. Empire Physicians denied the request, saying that Mr. Levy must see a local physician associated with the plan instead.

Mr. Levy paid Dr. Morton out of his own pocket for an evaluation, and got both good and bad news. Dr. Morton believed the cancer was operable, but insisted that the surgery be performed immediately, since the tumor could be expected to double in size within thirty days. Mr. Levy returned to his primary care physician, who obligingly prepared the paperwork to request approval for Dr. Morton to operate.

Mr. Levy’s HMO once again refused, insisting that the surgery must be performed by an in-group physician. Since the group’s oncologist had already told Mr. Levy there was no physician in the group who would perform the surgery, he instead chose to disenroll from the HMO and return to regular Medicare coverage. Dr. Morton operated successfully the day after the disenrollment was effective.

Mr. Levy not only sued PacifiCare and Empire Physicians for damages, but also asked the California state court to enjoin both groups from continuing the same behavior. In his lawsuit, he raised several of the most common criticisms of Medicare HMO policies and practices:

  • Because of the way Medicare pays HMOs, there is a built-in incentive for denial of coverage in circumstances like Mr. Levy’s. For example, PacifiCare is reimbursed for care it provides its Medicare customers based not on how much medical care they need, but strictly on how many of them there are. PacifiCare receives approximately $570 per month for each Medicare beneficiary it signs up, regardless of how many are sick, or how much medical care they require. When a Medicare beneficiary becomes ill, the HMO does not receive any additional income to help pay the cost of caring for that member.
  • The arrangement between PacifiCare (the HMO) and Empire (the doctor’s group) compounded this problem, according to Mr. Levy. Like PacifiCare, Empire received its income based only on how many PacifiCare members it enrolled, not on the basis of how much care they needed. When outside services (such as Mr. Levy’s second opinion and the proposed surgery itself) are called for, Empire must pay for those services from its share of the $570 per patient per month. Consequently, according to Mr. Levy’s lawsuit, Empire has the same built-in incentive to deny authority for the referral to a non-participating doctor, especially when there is some prospect that the doctor might recommend treatment that is not provided within the Empire group.
  • Because of those built-in conflicts, alleged Mr. Levy, PacifiCare and Empire withheld the outside referrals, denied authorization for testing, failed to provide adequate diagnosis, testing and treatment, and failed to pay for treatment Mr. Levy needed. All of that, argued Mr. Levy, was a breach of the duty of good faith and fair dealing owed by the medical providers to their patients. That denial, according to Mr. Levy, went further—it caused him substantial emotional distress, which PacifiCare and Empire knew (or should have known) would flow from their denials of coverage.
  • Because both PacifiCare and Empire knew that they would behave the way they did if a claim like Mr. Levy’s was made, he alleged that PacifiCare had made serious misrepresentations to him when it first signed him up for the HMO program. He had been told that he would receive all the treatment he needed, and that his primary care physician would be able to access that care for him. As it turned out, Mr. Levy alleged, that wasn’t true, and PacifiCare knew it wasn’t true when they recruited him.

Both PacifiCare and Empire vigorously denied that they had mistreated Mr. Levy in any way. Although medical providers often complain about the cost and difficulty of operating in the legal system, both also took full advantage of that system. PacifiCare first caused the case to be transferred to federal court, and then agreed to return it to the California state courts. Both providers then moved to dismiss, alleging that Mr. Levy’s only recourse was to pursue an administrative proceeding under federal Medicare law.

The California trial court agreed, and last week the Court of Appeals concurred. Although the judges were not unsympathetic to Mr. Levy’s plight, the message is clear: he (and other Medicare HMO beneficiaries) must make their claims within the Medicare system, not in the state courts. “The conduct about which plaintiff complains is a serious matter,” wrote the court. “However, redress for the disquieting issues raised by the complaint does not lie with this court. The Legislature has created a scheme by which the senior and disabled citizens of this country, who are of more modest means, receive their medical care. That scheme leaves state courts no avenue to rectify the concerns raised by the plaintiff.” Levy v. PacifiCare, December 22, 1999.

“Informed Consent” Duty Not Satisfied When Doctor Lies

OCTOBER 11, 1999 VOLUME 7, NUMBER 15

Before undertaking any medical procedure, physicians are required to obtain the consent of the patient (except in some limited circumstances, such as medical emergencies). Under American law, it is not enough to simply get the patient’s consent, however. The consent must be “informed”—in other words, the patient must be given sufficient information to evaluate the physician’s recommendations and intelligently give or withhold consent.

Informed consent requires that the patient be given information about the risk of the proposed treatment, the likelihood of success, the available alternatives and the likely result of taking no action. In fact, informed consent requires the physician to provide all the information a reasonable patient would use to evaluate the proposed treatment.

Cloma Duttry thought she was being a good medical consumer when she asked her doctor questions about a proposed operation. The Pennsylvania woman suffered from esophageal cancer. Dr. Lewis T. Patterson, her physician, recommended surgery. Before giving consent, she asked how experienced Dr. Patterson was with this particular kind of procedure. When she asked him how many times he had performed similar surgery, he assured her that he had done the same kind of operation about once a month over a five-year period. In fact, Dr. Patterson had only performed similar surgery five times in the five years before he operated on Mrs. Duttry.

After the surgery Mrs. Duttry developed complications. The surgical site developed a leak which required emergency surgery; later Mrs. Duttry developed Adult Respiratory Disease Syndrome and was unable to continue to work.

Mrs. Duttry sued Dr. Patterson; since Dr. Patterson withheld important information, she argued, her consent was not “informed,” and Dr. Patterson did not have authority to operate. After a trial, the Pennsylvania trial court disagreed and found in favor of Dr. Patterson.

Mrs. Duttry appealed the verdict. She argued that the doctor’s prior experience is important information. Dr. Patterson, on the other hand, argued that there is no requirement that a doctor disclose his or her familiarity with a specific procedure.

The Pennsylvania Superior Court agreed with Mrs. Duttry. By a 2-1 vote, the judges decided that when a patient asks about her doctor’s experience it indicates that the level of expertise is important to that patient in analyzing her choices.

The dissenting judge, like the lower court, pointed to an earlier Pennsylvania case involving the death of a young man. In that earlier case, the doctor who performed the operation was an alcoholic who was not licensed to practice medicine in Pennsylvania; the court nonetheless refused to require disclosure of those facts, saying that such information is personal to the physician and not “germane to surgical or operative treatment.”

The two-member majority in Ms. Duttry’s case disagreed. They noted that a physician must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person would consider significant in deciding whether to have the operation.” The mere fact that Mrs. Duttry had asked the question indicated that she thought the Doctor’s experience was a material fact. The case was returned to the trial court so Mrs. Duttry could put on her evidence. Duttry v. Patterson, October 5, 1999.

Major New Developments In Physician- Assisted Suicide

MARCH 11, 1996 VOLUME 3, NUMBER 37

Although physician-assisted suicide has been much discussed in recent years, few legal developments have advanced the state of the law since Oregon voters approved an initiative measure in November, 1994. That changed dramatically this week, with two major developments. On Wednesday, a Federal Appeals Court ruled that Washington State’s ban on assisting with suicide is unconstitutional, at least as applied to “physician-aid-in-dying.” Then on Friday, a Michigan jury found Dr. Jack Kevorkian not guilty in his second criminal trial for allegedly assisting terminally ill patients to commit suicide.

Although the Kevorkian case is probably better-known, the Federal Court of Appeals decision is of far more significance, particularly in Arizona. The case, Compassion in Dying v. State of Washington, was decided by the Court of Appeals responsible for reviewing Arizona, California, Washington, Oregon, Nevada, Idaho and Montana laws. Since it is based on the U.S. Constitution, the case stands as precedent for all those states, at least until the U.S. Supreme Court rules otherwise.

The Compassion in Dying case began after Washington voters turned down an initiative measure on physician-assisted suicide. In spite of the election results, a group of Washington doctors formed Compassion in Dying, a non-profit group, to help terminally ill patients effectively and painlessly end their lives.

Compassion in Dying, its doctor members, and three terminally ill patients sued in Federal Court to invalidate Washington’s criminal statute on assisting suicide. The patients, all three of whom have since died, are described in the Court of Appeals decision by pseudonyms:

  • Jane Roe, 69, a retired pediatrician. Ms. Roe had suffered from cancer for six years, and the disease had metastasized throughout her skeleton by the time the lawsuit was filed. She was in constant pain, and suffered from swollen legs, bedsores, nausea, vomiting, impaired vision and other effects of her illness.
  • John Doe, 44, an artist suffering from AIDS. Mr. Doe had been diagnosed three years earlier, and had lost 70% of his vision, suffered from pneumonia, skin and sinus infections, seizures and extreme fatigue.
  • James Poe, 69, a retired sales representative suffering from emphysema. Mr. Poe was connected to an oxygen tank at all times, constantly felt he was being suffocated and took morphine regularly to calm his panic reaction. Like the others, he was in the terminal phase of his illness.

The Court, in an eloquent and thoughtful decision, found that the U.S. Constitution permits a competent terminally ill patient to have aid from a physician in ending his or her life. Washington’s statute (which is nearly identical to Arizona’s) is therefore invalid as applied to physician-aid-in-dying.

In reaching its conclusion, the Court assayed the history of suicide in ancient times and modern opinion. According to the Court, ancient Greeks, Romans and Christians viewed suicide as acceptable, particularly where the victim was ill and in pain. And public opinion polls show a dramatic shift on the subject in recent years: while 37% of respondents favored permitting doctors to assist terminally ill patients to commit suicide in 1947, more than half were in favor in a 1973 poll. By 1983, 63% favored physician-aid-in-dying.

Although there is no guarantee that the U.S. Supreme Court will rule on the question, an appeal to that court is expected.

New Will, Signed While Dying In Hospital, Ruled Invalid

OCTOBER 30, 1995 VOLUME 3, NUMBER 18

Grace Gillespie may have seemed to be a lucky woman. After all, she had won $2,000,000 in the lottery. In 1992, however, she was admitted to a Phoenix-area hospital for treatment of pneumonia and lung cancer; doctors quickly determined that her condition was terminal.

Ms. Gillespie had previously signed a Will leaving her estate in equal shares to her three children and her mother. The one-quarter share set aside for her mother would be distributed, upon her death, to Ms. Gillespie’s nieces and nephews. Ms. Gillespie had also executed a durable power of attorney the year before, giving her son James authority to handle her affairs.

As Ms. Gillespie lay dying in her hospital bed, James arranged for his own lawyers to prepare a new Will and power of attorney for his mother’s signature. Six days before her death, he presented them to her at her bedside, telling her that the power of attorney would allow him to continue to pay her bills and feed her pet cockatiel. The Will, he told her, would divide her estate into three equal shares, one for each of her children.

In fact, the Will prepared by James’ lawyers left most of Ms. Gillespie’s estate to a trust established by James. Furthermore, the Will forgave part of a debt owed by James’ company to Ms. Gillespie and left her Lexus to her daughter; the distribution was not equal, as Ms. Gillespie had been told. The trust kept her daughter’s share in trust, with James as trustee. The same day, James changed the beneficiary on Ms. Gillespie’s lottery winnings from the three children to the trust he had created.

On the day of Ms. Gillespie’s death, James amended the trust so that her other son’s share would also remain in the trust after her death.

Ms. Gillespie had not asked for a new Will to be prepared. At the time of her signature, she was sedated and on a ventilator, and could only nod her agreement to her son’s description of the new Will. Her signature demonstrated her diminished physical capacity.

The Arizona Supreme Court reviewed the estate plan prepared by James, and determined that it was not Ms. Gillespie’s plan. Although Wills may normally be challenged only when the signer is incapacitated, or when the signature is the product of undue influence, the Court in this case ruled that Ms. Gillespie’s signature was simply invalid. Since she had not read the documents nor had them read to her, and since James misrepresented their terms to her, the Court ruled that she had not effectively signed the Will. Thus, the Court sidestepped the issue of Ms. Gillespie’s capacity and simply determined that the document was James’ will, not Ms. Gillespie’s Will. Estate of Gillespie, Arizona Supreme Court, September 14, 1995.

Jury Awards On Rise For Elderly Victims of Poor Nursing Care

SEPTEMBER 11, 1995 VOLUME 3, NUMBER 11

When Walter Spilman entered the Eastbrooke Health Care Center in Brooksville, Florida, he was terminally ill. At 88, he had been diagnosed as suffering for Alzheimer’s disease and cancer, and he was not expected to live long.

After Mr. Spilman’s death, his estate brought an action against Eastbrooke for the mental anguish he suffered, claiming he was denied the kind of mattress and bedding he required to prevent bedsores, that he was not turned frequently enough, and that he was made to lie in his own urine and feces. Even the attorney for the nursing home conceded at trial that it had violated some of Mr. Spilman’s rights and some verdict should be entered in favor of the estate. One of the points conceded by the nursing home: Mr. Spilman had not been fed for one six-day period.

After a two-day trial featuring photographic evidence of Mr. Spilman’s condition, the Florida jury awarded over $2½ million in damages to his estate. Some jurors indicated they would have gone as high as $10 million.

Previous Elder Law Issues have reported on a trend toward larger jury awards for older plaintiffs in more traditional personal injury cases. Mr. Spilman’s case and a handful of others reflect another recent trend: jury verdicts for negligent nursing care are also on the rise. A recent article in The Wall Street Journal focused on the trend.

According to independent jury research, the mean award in nursing home negligence cases has doubled in the past seven years, going from less than $250,000 to over $500,000. Experts in the field ascribe the increase to a growing public perception that moving to a nursing home need not consign one to oblivion, and that it is both important and possible to die with dignity, regardless of the setting.

One reason cited for the increase in nursing home negligence cases: recent regulatory changes requiring careful documentation of all nursing home problems and regular written surveys. That makes it easy to demonstrate a pattern of abuse or neglect, if one exists. It also makes it easy to demonstrate when a nursing home has failed to take steps to remedy problems with the quality of care in other cases.

In a Cumberland County, North Carolina, case, state surveys were instrumental in securing a settlement of $850,000 for the estate of Easter West. Attorneys for the estate argued that they should be able to use the state evidence of over 200 instances of failure to follow physician’s orders, improper medication administration and failure to assess patients’ needs.

The increase in jury verdicts surprises some who indicate that decline and death are the usual result of institutionalization. The attorney for one nursing home told the Journal: “Guess what? People don’t go to nursing homes to get better and check out. They go there to die.”

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