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3 Sue Kaiser in Transplant Case

Lawyers say the action may be the first of many. The HMO's arbitration rule could thwart them.

May 12, 2006|Charles Ornstein and Tracy Weber | Times Staff Writers

Two Kaiser Permanente patients and the widow of a third sued the giant HMO on Thursday, filing the first in what lawyers say could be a deluge of cases stemming from problems in Kaiser's fledgling kidney transplant program in Northern California.

One plaintiff said her husband died last year after Kaiser fumbled his paperwork, effectively removing him from consideration for a kidney. A second said she had become progressively sicker as the HMO repeatedly and inexplicably delayed her transplant.

The third, Phillip Maxson, said his own Kaiser doctor advised him on three occasions to travel to the Philippines to get a kidney, rather than waiting for the HMO to come through.

"He told Phil, 'If I were you, I would just go to the Philippines,' " said Maxson's wife, Marianne, who added that she was present during the conversations. The Santa Clara kidney specialist, Dr. Sami Mazbar, even handed Phillip Maxson a piece of paper with a phone number on it, she said.

He said, "Call this number, [pay] $30,000 and in six weeks you can go and have your operation and be done with it," Marianne Maxson said Thursday.

Mazbar acknowledged in an interview that he tells anxious patients about opportunities to get transplants overseas but said he does not give out phone numbers. "I'm a patient advocate, so whatever I think could help the patient get a kidney transplant, I do it, as long as it is within the law."

Kaiser spokesman Matthew Schiffgens declined to comment Thursday on the suit, saying the HMO had not had a chance to review it.

Other cases are being prepared. Stuart C. Talley, the Sacramento attorney who filed the suit Thursday in Alameda County Superior Court, said he expects to file about 15 more in the next two weeks. Another firm has taken out ads on Internet search engines looking for potential plaintiffs.

And Jeffrey Milman, a Newport Beach lawyer, said he is reviewing cases now.

"Where there's smoke, there's fire," he said. "My guess is that there's probably at least 1,000 or more people out there that have been wronged. The question is to what extent."

Other attorneys agreed but cautioned that Maxson and other Kaiser patients may never get their day in court.

Just as the HMO requires its members to receive their care at Kaiser facilities in nearly all cases, it mandates that disputes be resolved in binding arbitration outside the public court system. Some lawyers have tried in previous litigation, with little success, to keep their cases outside the arbitration system.

"They're trapped in Kaiser, and then they're trapped into arbitration," Talley said. "The traditional ways people can obtain justice just aren't there for them."

Kaiser requires members to agree to send their cases to arbitration as a condition of providing care to them. The system relies on a panel of up to three arbitrators to adjudicate claims. Hearings are private, and decisions cannot be appealed.

The HMO's officials have said binding arbitration is faster than the judicial system and as fair.

Thursday's lawsuit follows reports in The Times last week describing how in mid-2004 Kaiser forced up to 1,500 patients to move to its start-up program from UC San Francisco and UC Davis, which had previously cared for them under contract with Kaiser. At Kaiser's new center in San Francisco, twice as many patients died on the waiting list as received kidneys last year. The statewide pattern for transplant centers was the reverse: More than twice as many people got kidneys as died.

Hundreds of patients were not properly transferred from their old programs to Kaiser's, leaving them in limbo with little hope of receiving a new kidney.

"They're in a lottery to start with," Talley said, referring to the difficulties facing anyone waiting for a kidney. "Then they get stuck in Kaiser, and the odds are much longer in a sense. They've been damaged by that fact alone."

The suit was filed on behalf of Maxson, as well as patient Darlis Beale and Ella Haynes, whose husband, Ronald, died last year while waiting for a kidney at Kaiser.

The suit was filed a day after the state Department of Managed Health Care said it would be more actively involved in oversight of the Kaiser program, because of concerns about the way patients were treated. As part of an agreement with the agency, Kaiser said it would pay for transplants at UC San Francisco and UC Davis for patients dissatisfied with the care at the HMO's transplant center.

Beale said she contacted UC San Francisco this week and asked to go back to that program. She received a return call from a transplant coordinator at the university Thursday setting up an appointment for June 2.

Claremont trial lawyer Michael Bidart, whose firm has won multimillion-dollar verdicts against health plans, said he believes Kaiser members have strong grounds to sue based on what he has read of The Times' investigation.

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