During the last five months of 1999, Robyn Libitsky went to Kaiser Permanente 13 times with complaints of piercing back pain, only to be misdiagnosed and sent away with Tylenol, a prescription for sleep aids, physical therapy and an X-ray to the wrong part of her back.
By the time Libitsky was diagnosed with Ewing's sarcoma, a rare fast-growing cancer, it was too late. She died last February at 29.
Before she died, Libitsky brought a malpractice complaint against Kaiser. In May 2002, arbitrators awarded her nearly $1 million in damages, finding that Kaiser and "its medical providers were negligent in the belated diagnosis and treatment of claimant's Ewing's sarcoma."
Her lawyers contended that Libitsky's chance of survival would have been 65% had the cancer been detected during any of her first half-dozen doctor visits.
But when, as required by law, the nation's largest nonprofit HMO told the Medical Board of California that arbitrators had ruled against it, Kaiser officials chose to name just one of six doctors listed in the decision.
Now, Libitsky's mother, Hillarie Levy of Simi Valley, has launched a crusade questioning why state law allows Kaiser to decide which doctors involved in arbitration awards will have their names forwarded to the Medical Board, a state agency that licenses physicians.
While Kaiser's attorney calls her a grief-stricken mom bent on vengeance, others say she may have identified a serious problem with a law that requires healthcare providers or their malpractice insurers to report at least one doctor after any arbitration award.
"The law is there to make sure the public and consumers are aware of what is going on -- period," said state Sen. Liz Figueroa (D-Fremont), who wrote legislation in 2002 requiring the Medical Board to post a doctor's disciplinary history on its website. "If we need to remedy this by legislative means, we will look at that."
Kaiser said it handled the Libitsky award properly and unfailingly followed the law in reporting doctors to the Medical Board. And officials there say they cannot recall another case in which their decision about whom to report has been questioned.
The HMO says it always reports doctors identified by arbitrators as having failed to meet standards of care. In cases where the arbitrator is less clear and more than one doctor is involved -- such as the Libitsky case -- Kaiser and its attorneys look at the facts to decide who should be reported, Kaiser officials said.
