How Many Doctors Should Be Blamed?

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.

“We have to piece things together in each case and make our best determination on whom to report -- and we take that responsibility very seriously,” said Dr. David Lerman, legal counsel for the Oakland-based medical group’s Southern California operation.

Libitsky, then a 24-year-old aide to Los Angeles County Supervisor Zev Yaroslavsky who was planning to start law school the next year, first went to Kaiser’s emergency room in Woodland Hills in August 1999 complaining of severe back pain after having moved some boxes.

She was given a narcotic pain medication and sent home, but was back at Kaiser two days later, saying the pain was keeping her awake, according to a summary of the case by arbitrators Joseph S. D’Antony, a Laguna Hills lawyer, and Raymond Cardenas, a retired judge. A doctor told her muscle strain takes a long time to heal, and gave her medication to help her sleep.

After her fifth visit, Libitsky was diagnosed with chronic back pain and by November had begun physical therapy, the arbitrators wrote. On Dec. 28 a physical therapist noted a mass below the skin on her back and told a doctor, who ordered an X-ray. But the X-ray was taken of the wrong part of the back, further delaying a correct diagnosis. Finally, on Jan. 4, a doctor ordered another X-ray; the cancer was diagnosed three days later.

A third arbitrator, Sherman Oaks lawyer Alan Rushfeldt, disagreed with the majority opinion, concluding that the evidence presented did not prove Kaiser doctors were negligent. Even if they were, Libitsky failed to prove that her cancer was of a type that could have been cured had it been properly diagnosed in time, Rushfeldt wrote.

Kaiser’s lawyer in the case, B. Casey Yim of Los Angeles, said that none of the doctors in the Libitsky case should have been reported to the Medical Board because it was not clear any of them had done anything wrong. But because the law requires at least one doctor to be reported in such cases, Kaiser chose to forward the name of Dr. Shiu-Kwan Fok.

Fok, a physical medicine and rehabilitation specialist at Kaiser’s Woodland Hills Medical Center, had seen Libitsky in late November. He did not return calls seeking comment.

As a result of Kaiser’s report, the Medical Board notes the date and amount of the Libitsky arbitration award on Fok’s record in its public database at www.medbd.ca.gov. (The law also requires providers to report at least one doctor involved in settlements or court judgments of more than $30,000.)

After her daughter died this year, Levy decided to launch her campaign to change the law, assembling packets of information -- complete with her daughter’s high school graduation pictures -- for legislators and regulators.

“I’m just trying to get the word out: People aren’t getting the whole story on their HMOs or their doctors from the state of California,” said Levy, 52.

Asked about the Libitsky case, the state’s top HMO regulator said it raised questions worth addressing. Cindy Ehnes, director of the state Department of Managed Health Care, said it might be time for legislation to increase the transparency of the malpractice arbitration process.

“As we ask consumers to make more and more of the decisions for their healthcare needs, we may need to go back and take a different legislative tack on this,” she said.

But Lerman, the Kaiser legal counsel, points out that current law already provides for a second look at arbitration awards by the Medical Board’s staff, which has authority to scrutinize case records to see whether additional doctors involved should be reported.

Some are not reassured by this. “The medical board hasn’t had a great record of being aggressive about consumer complaints,” said Jerry Flanagan of the Foundation for Taxpayer and Consumer Rights, a Santa Monica advocacy group active on health issues. “There’s a sense the Medical Board is too close to physicians.”

Board investigators examined the Libitsky case but did not recommend that the award be noted on the records of any other doctors but Fok, said David Thornton, executive director of the Medical Board.

That disturbs Figueroa, the state senator. After reading the Libitsky arbitration decision, Figueroa said she thought the award should be noted on the Medical Board record of all six doctors named.

“Kaiser is wrong and the Medical Board is equally wrong,” Figueroa said, adding that she would ask the board to reconsider the case.

Because arbitration decisions are confidential unless released by family members, as in the Libitsky case, it is impossible for the public to see how often doctors who lose such cases are not reported to the Medical Board.

During the 2003-04 fiscal year, 60 arbitration awards were reported to the Medical Board, and 36 were reported the following year, board officials said. Kaiser accounts for about 85% of those, because the HMO requires its members to arbitrate rather than sue over any dispute.

But physician groups say that a doctor’s legal history isn’t always a good indicator of the quality of care given by the doctor. For example, these groups say, physicians with tougher cases may have more discipline marks on their records.

“I just don’t think the consumer gets much information from these awards,” said Dr. Robert Hertzka, with the California Medical Assn., which represents doctors.

At the Medical Board, Thornton said he sympathized with Levy’s grief over her daughter’s death, but said doctors were human and could make mistakes.

“It’s an extremely sad case,” he said. “If I was in her position, I’d be doing the same thing, questioning the system. But from where I sit, inside the system, I know physicians can make mistakes and that doesn’t mean they are bad physicians.”