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Baby's parents battle HMO in court

A judge tells Kaiser to transfer the premature triplet to an outside hospital, as the couple had wanted. Then he rescinds the order.

September 22, 2007|Charles Ornstein | Times Staff Writer

A highly unusual battle erupted in a San Diego courtroom Friday, with parents of a severely premature baby seeking to force healthcare giant Kaiser Permanente to move their son to a better-equipped hospital in hopes of saving his life.

In the morning, Superior Court Judge Kevin Enright gave Kaiser's San Diego hospital 24 hours to transfer 7-week-old Andrew Balaka-Long to a higher-level neonatal intensive care unit outside the Kaiser network. His father, a gynecologist, had argued that Kaiser had bungled the boy's care -- an allegation Kaiser vehemently denied.

Hours later, however, Enright rescinded his order after Kaiser lawyers told him that they could not find another hospital willing to accept the infant. The judge asked both sides to return to court Tuesday morning.

Andrew, a triplet, was born Aug. 2 at about 24 weeks' gestation, nearly four months premature. He weighed 660 grams, or about 1 1/2 pounds. Now less than 3 pounds, he suffers from bleeding in the brain, underdeveloped lungs and a congenital heart defect, records show.

He is the only triplet to survive. His sister Lilly died the day she was born, his brother Robert a week later.

The babies' father, Dr. James M. Long, who does not work for Kaiser, believed Andrew would be better served at a different hospital that could provide a higher level of care. But the health plan refused, saying a transfer was not medically necessary. Last week, Long appealed the denial to the state Department of Managed Health Care.

Under state law, such appeals are sent to independent medical reviewers, whose decisions are binding on all parties. On Tuesday, the physician who reviewed Andrew's case ordered Kaiser to transfer the child to an outside hospital, as Long had requested. (Kaiser, which operates both a health plan and a hospital system, almost always requires members to receive care in its own facilities.)

Kaiser officials said that although they disagreed with the reviewer's decision, they tried to implement the order. Other hospitals were unwilling to take the boy, however, because they have waiting lists of children whose conditions are more dire than Andrew's, said Tony Minks, chief operating officer of Kaiser's San Diego hospital.

"Whether they accept the child or not is out of our hands," Minks said. "Kaiser Permanente has no standing. . . to require them to accept the transfer."

Given Kaiser's explanation, the judge's hands were tied, acknowledged Long's lawyer, Sharon Arkin.

Experts say the dispute is highly unusual. Typically, when a consumer appeals to the state and an HMO's decision is overturned, health plan officials hurriedly provide the denied treatment. Lynne Randolph, a spokeswoman for the state managed care department, said she was not aware of any other case in which a patient had gone to court in such a dispute.

Last year the state handled more than 1,100 patient appeals seeking independent medical reviews when a health plan denied a treatment. Reviewers found in favor of consumers about 40% of the time.

"Unfortunately, this is a very, very sad case, a very emotional one," Randolph said.

Long, 50, and his wife, Svetlana Balaka, 37, have filed a lawsuit against the hospital alleging medical malpractice and wrongful death in the cases of the other triplets.

"Two of my children have already died in your hospital," Long wrote in an e-mail Thursday to Kaiser officials. "Please make the transfer and allow Andrew to get good medical care and not kill my son."

On Friday, Long acknowledged the toll on his family, wondering whether Andrew will live or die. "It's been extremely stressful, to say the least," Long said in a telephone interview as he was driving to the afternoon court hearing. "I'm at a loss for words for describing it."

Kaiser's Minks said physicians "went above and beyond" in the care of Balaka and the triplets. He said outside experts have reviewed Andrew's medical records on several occasions and found no problems with the care.


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