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With High Court OK, Family Sues an HMO

Strictly to save money, a Costa Mesa man wasn't told of a lung transplant option, his survivors say. They also sue a Newport Beach doctors group.

November 11, 2002|Jeff Gottlieb | Times Staff Writer

The widow and children of a disabled Costa Mesa man are suing a health maintenance organization and a Newport Beach doctors group, alleging that the patient wasn't told he was a candidate for a lung transplant because it would have cost too much.

The case, set for trial in Santa Ana this week, raises questions about how a doctor decides what treatment is appropriate for a patient whose HMO will pay only a certain amount for care.

The lawsuit, on behalf of George McCall, is already creating headaches for the managed care industry. The state Supreme Court ruled in the case last year that Medicare patients may sue HMOs that deny them necessary but expensive treatments that Medicare will not pay for. The decision clears the way for survivors of McCall -- and other elderly and disabled patients and their survivors -- to sue health providers. Previously, those complaints had to be heard in an administrative proceeding.

McCall, who owned a furniture manufacturing company, died in 1999, three hours after finally having the transplant surgery at UC San Diego. He was 58.

His family contends that if the transplant had been recommended years earlier by PacifiCare of California and Dr. Lakshmi Shukla of Greater Newport Physicians Inc., he would have been healthy enough to withstand the operation.

"How can it not be sitting in the back of their mind that 'This is costing us $300,000?' " Carol Jimenez, one of the McCall family attorneys, said of the lung transplant's cost.

In briefs filed in Orange County Superior Court, lawyers for PacifiCare and Shukla said McCall was never denied a lung transplant and that he, not the doctor or the HMO, made the decision not to have the operation. Attorneys for Shukla and Greater Newport did not return calls seeking comment.

Shukla's attorneys wrote that McCall had the impression that lung transplant patients had a low survival rate and that he told the doctor that he wouldn't consider a lung transplant "unless he was confined to bed rest and it was absolutely a last resort."

McCall family attorneys, however, said the doctor never provided the patient with correct information on the mortality rate for lung transplants. They also said there was no mention in McCall's medical records that Shukla ever recommended the operation.

"If you've got a patient this sick and he's refusing the only treatment option available, wouldn't you document it?" Jimenez said.

Russell Balisok, another McCall family attorney, said the patient should have been put on the transplant waiting list in 1995. With the normal two-year wait, he would have undergone the operation in 1997 instead of when he was too weak to survive, the attorney said. "He'd be alive today," Balisok said.

Gerald Kominski, associate director of the UCLA Center for Health Policy Research, said that by their nature, HMOs have a conflict of interest involving patients' medical decisions.

"They have to balance the trade-offs between medical necessity and the financial incentive to provide the least amount of care necessary," he said. "This is the world of managed care."

The McCalls' lawyers said they will ask the court for an injunction to require PacifiCare and other HMOs to disclose to patients how treatment options affect a doctor's profits.

"The injunction would be a remarkable thing if we got it," Balisok said. "It would take a fairly courageous judge."

McCall had the lung disease alpha-1 antitrypsin deficiency, a genetic disorder in which the body doesn't produce enough protein for cell regeneration and repair, causing severe emphysema. His problems were exacerbated by long-term smoking.

In 1992, McCall enrolled in an HMO that PacifiCare offered for Medicare patients. Shukla, his pulmonologist, was a member of Greater Newport Physicians, a medical group the plan offered.

According to the suit, Medicare paid PacifiCare a monthly fee for every patient in the program, regardless of how much care they required.

In 1994, McCall's condition worsened, and he underwent experimental treatments that were supposed to cost $60,000 total. But with complications, they cost the defendants nearly $300,000, about equal to a lung transplant.

The McCalls said they didn't consider a transplant until 1997, when George McCall was in Hoag Memorial Hospital Presbyterian in Newport Beach with life-threatening pneumonia. A temporary nurse happened to ask him where he stood on the transplant waiting list. She also said the transplant results were much better than he had thought, the attorneys said.

"This was the first time since 1989 that George and Barbara had heard mention of a transplant as an option," the suit said.

The suit also alleges that Shukla told McCall that to get the transplant at UC San Diego, he would have to drop out of PacifiCare. The lawyers said it is illegal to force a patient to leave an HMO to get treatment.

McCall, however, did drop out of the plan and spent two years on the transplant list.

During that time, his wife said, he was on a ventilator and needed 24-hour care.

"His last two years were a total hell," she said.

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