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Loses First Round to Insurance Company in Court : A Mother Fights for Disabled Baby

September 18, 1986|KIM MURPHY | Times Staff Writer

Evangelina Lopez spends nearly every hour she is at home near the crib of her infant son. Nine-month-old Enrique Lopez is blind. His hearing is severely impaired. He is brain damaged. Nurses who examined him recently said the only outside stimulus he responds to is pain.

But when Lopez walks in after work in the evening, Enrique begins waving his arms and legs. Through the web of feeding tubes and breathing pipes and electric monitors that keep her child alive, she swears, he responds to her voice.

That special bond between mother and son is at the heart of a legal battle that Lopez is waging now to make sure her son is allowed to stay at home--a battle she may be slowly losing.

A Superior Court judge on Wednesday refused to order her insurance company to continue paying for the expensive 24-hour-a-day nursing care that Lopez claims Enrique needs to survive.

Now, her attorneys say, Lopez is faced with the prospect of sending Enrique to a state hospital or trying to care for him herself at home--something Lopez believes she isn't able to do.

"I am fearful that he may die if left alone with me," Lopez, who does not speak English, said in papers filed with the court Tuesday afternoon.

Attorneys for PacifiCare, the health maintenance organization that has paid for Enrique's $480-a-day nursing care since May, say they have more than met their obligations, and they hope that state health programs like Medi-Cal may be able to come to Lopez's aid.

"This is a heart-wrenching situation, to say the least," said Peter Rank, the former state health services director who has represented PacifiCare in the Lopez case.

"The whole country is under a crisis in paying for the cost of health care, and one of the major moral and legal and financial dilemmas that every policy maker is dealing with is where do you draw the line, how much can you pay for individuals where there is little or no hope?"

Enrique was born in December--when Lopez, 32, had completed only her sixth month of pregnancy--and spent his first several months in a neonatal intensive care unit. He was progressing well there until late March, when he inhaled some food and suffered cardiac and respiratory failure, and came away from the incident with heavy brain damage.

PacifiCare, which had paid all the hospital bills, agreed to provide a week's worth of 24-hour-a-day nursing care in Lopez's home. That, they said, would be long enough for Lopez to learn to care for the child herself.

But the baby proved to be far too much to handle for the single mother, who makes $600 a month working 10-hour days at a pillow factory to support herself, Enrique and her 7-year-old daughter.

Enrique is fed through a nasal tube, and occasionally the area around the tube becomes inflamed. He breathes through a tracheal tube, which must be suctioned every 10 minutes to prevent a build-up of mucus.

He takes eight medications to control infections and seizures, but must still be connected to special monitors because his breathing could stop at any time. Twice a day, his lungs must be cleared of mucus, a 45-minute process. Occasionally, his lungs must be manually reinflated.

And while he has improved somewhat during his months at home and may eventually no longer need constant monitoring of his heart and lungs, doctors say Enrique will always need a "substantial level of care."

Lopez said that while she has tried to learn to operate the equipment that keeps her baby alive, she still panics when something goes wrong.

Moreover, because of the baby's need for constant care, Lopez said the loss of the nursing help would mean she would have to quit her job--and thereby lose all of her medical insurance coverage.

In a lawsuit filed against PacifiCare in July, Legal Aid attorneys representing Lopez claimed that the insurance company, by timing its first threats to cut off nursing payments with the day Lopez was scheduled to return to work, had attempted to force her to quit her job, thus removing the admittedly expensive case from its benefit rolls.

PacifiCare spokesmen deny they were trying to force Lopez to lose her job and insurance coverage, and claim that their representative never threatened Lopez with an outright cutoff, but merely called to inform the mother that the coverage was being "re-evaluated."

Case Reviewed

The bottom line is that PacifiCare's insurance contract agrees to pay for "medically necessary" services, and a team of experts who have reviewed the case have determined that 24-hour-a-day nursing care is not medically necessary for Enrique, attorney Joseph S. Konowiecki said.

The insurance company has provided coverage this long only because of "a perceived moral obligation," the firm said in papers filed with the court.

"Simply because Mrs. Lopez desires to have the benefit of non-medically necessary 24-hour nursing care for her child does not impose a duty upon PacifiCare to provide such care."

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