Twisted System

A Phoenix family stumbles through the tangled bureaucracy of modern medical care

This was the basis that the Lees' final appeal was decided on. Jaroch says this was sent to outside review before the Lees responded "as a courtesy to the family."

Cost never entered into it, the HMO officials say.
"I don't remember one conversation I had where the cost of the procedure ever came up," Elk says. "I don't even know what they cost, to tell you the truth."

But if cost was never an issue, why didn't the HMO just give the patient what she wanted?

"We could do that, I suppose," Geary says. "But we made a promise to our other policyholders that we would abide by the terms of their policies and keep costs down and cover their illnesses in this way. I suppose we could charge everyone $3,000 or more a year and be a traditional fee-for-service insurance company, but that's not who we are."

So what does it take to talk to the person actually making the decisions about your health care? Where does the buck stop?

Geary ponders that question for a long moment before he answers.
"There is no provision in our process that would call for interaction between the person complaining and a medical director, unless the medical director calls for more information," he says.

There aren't many places left for the Lees to turn. Their appeals are exhausted, and their remedies outside the system are few.

Lee's struggle comes just as federal and state lawmakers are also grappling with questions over HMOs. Congress will debate a "patient's bill of rights," this session, with Democrats and Republicans offering competing versions. State legislatures are stepping in at the same time, tightening regulation of HMOs and passing laws designed to guarantee a fair appeals process.

Punitive damages against most HMOs are prevented by a federal law, the Employment Retirement Income Security Act (ERISA). Passed in 1974, ERISA was designed to protect employee retirement plans from frivolous lawsuits. But today, even if a jury sided with Lee, he'd get no attorney's fees or damages.

Arizona is supposed to be ahead of the class on this test. Last year, legislation passed that mandates an appeals process for decisions made about patient care--the same process the Lees struggled with.

This year, the Legislature tried again to pass a "Patient Protection Act" that would allow people like Lee to sue HMOs for punitive damages. But the right to sue was stripped out in committee.

Lee thinks the appeals process is a joke if patients can't sue HMOs for damages in court.

"So, what am I supposed to do?" Lee asks. "I could spend $50,000 in court, and get the operation paid for, maybe. I can't win."

National consumer advocates agree.
"If you don't have the threat of a lawsuit, you get treated shabbily," says Jamie Court of the Foundation for Taxpayer and Consumer Rights.

"HMOs are the only industries in the country that are immune from liability because of a quirk in federal law," adds Judy Waxman of Families USA, a national consumer group. "The industry says it would be too hard on them. Well, aren't lawsuits hard on General Motors? There has to be some accountability."

Lawsuits are the HMO industry's worst nightmare. The Arizona Chamber of Commerce, a powerful pro-business group, funded a hit campaign against legislators who supported this year's bill, sending out fliers deriding the proposed legislation.

The industry has good reason to be scared. In a California case last year, an HMO was sued for punitive damages using a loophole in the federal law. A jury awarded a widow $116 million because it denied her husband an experimental cancer treatment.

Even if the Legislature guaranteed the right to sue, it would be too late to do Shawndra Lee any good. David Lee has filed a complaint against the medical directors of PacifiCare with the Arizona Board of Medical Examiners (BOMEX). He says the HMO made medical decisions based on economics, rather than on what's best for the patient. He also accuses PacifiCare of unprofessional conduct for deceiving him and his family during the process. While other doctors have taken HMOs to task for failing to provide appropriate care, he is the first citizen to try to hold medical directors accountable for their actions. Most citizens don't even know they can file a complaint against doctors, let alone against the often faceless medical directors who decide what your insurance will pay.

But BOMEX's track record in this area isn't hopeful, either. While BOMEX was the first medical board in the nation to take action against a medical director of an HMO, in the six years since, it hasn't done anything more than once issue a letter of concern, an action that is nondisciplinary by law.

And in one case, BOMEX dismissed a complaint against PacifiCare, after a board member who works for the HMO recommended it. Last year, Dr. Edward Schwager led the investigation into an accusation that a medical director at PacifiCare ordered an elderly patient out of the hospital while the man was still sick. Schwager recommended dismissal of the complaint, and the board voted with him. But Schwager never disclosed his medical group's multimillion-dollar contract with PacifiCare. (Last month, Schwager's group dropped the contract for financial reasons.)

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