Landmark Malpractice Trial Focuses on HMO : Courts: Restrictive payment policy contributed to patient’s death, jury is told. Defense disagrees.

Saying that “assembly-line medicine” killed Joyce Ching, attorney Mark Hiepler promised a Ventura County jury Tuesday that he would prove that a health maintenance organization’s restrictive payment policy along with medical malpractice at a Simi Valley medical office led to the young woman’s death of colon cancer.

But defense attorney Michael Gonzalez countered by telling the jury that he would call insurance executives to prove that the HMO payment system “doesn’t play a part in providing medical care.” Further, he said that medical malpractice had nothing to do with Ching’s death at age 35 last year.

Regardless of which side the jury ultimately believes, the case has already shaped up to be a landmark medical malpractice lawsuit. It is the first time that the financial relationship between HMOs and their member doctors has been challenged in a California courtroom.

Insurance company representatives and personal injury attorneys sat next to each other in the gallery and watched intently as Hiepler unveiled his medical malpractice theory during his opening statement Tuesday.

Hiepler said that he would put HMO’s restrictive payment system, known as capitation, on trial alongside two Simi Valley doctors. Under capitation, HMOs pay member doctors a flat monthly fee for each patient they sign up--regardless of how much medical treatment is rendered. The system also pays doctors what amounts to a bonus if they refer fewer patients to medical specialists.

Hiepler told the jury that during the next three weeks he would prove that Metropolitan Life’s HMO payment policy encouraged physicians Elvin Gaines and Dan Engeberg to sign up as many patients as they could while motivating them to withhold expensive medical care.

*

Metropolitan Life is not named in the suit.

Hiepler told the jury that the two doctors resisted for 11 weeks the requests of Joyce Ching and her husband, David, to have her sent to a specialist. When they finally relented, Joyce Ching was diagnosed with colon cancer that was too far advanced to be stopped.

“She died as the result of assembly-line medicine,” Hiepler said.

He told the jury that Gaines and Engeberg turned down at least three requests to send Ching to a medical specialist as her abdominal pains and discomfort continued for two months during the summer of 1992. The housewife died in April, 1994, leaving David a single parent of their son, Justin, now 5 years old.

But Gonzalez told the jury a markedly different account of Ching’s death during his opening statements.

He said Simi Valley Family Practice and its two principal doctors, Gaines and Engeberg, did everything professionally possible to treat the ailing woman. Gonzalez also implied that Ching’s own obstinacy contributed to a delay in diagnosis.

Gonzalez told the jury that two of those requests seeking a referral to medical specialists were made by telephone and that doctors asked Ching to first come into the Simi Valley office to be examined.

*

“You got to know where to send these people before you give them a referral,” Gonzalez told the jury.

At one point, Gonzalez said that Joyce Ching declined to submit to an uncomfortable procedure that may have discovered the colon cancer and instead demanded that an X-ray of the abdomen be taken.

“An X-ray won’t do it,” Gonzalez said.

Further, Gonzalez said that Ching’s initial symptoms of abdominal pain and rectal bleeding led doctors down several incorrect diagnostic paths. Everything from parasites to a gall bladder disease were initially considered and later eliminated, Gonzalez told the jury.

And the nearly three months it took to diagnose the cancer probably did not make that much of a difference in Ching’s chance for survival, Gonzalez said. Her death, he told the jury, was nobody’s fault.

“This tumor [that] had been growing for years, with millions and billions of cancer cells, is what doomed her,” Gonzalez said.

The opening statements were delayed until the afternoon after Superior Court Judge Ken Riley spent the morning interviewing the 12 jurors and two alternates individually after Gonzalez made a motion for a mistrial. Hiepler and David Ching were featured on CBS’s “60 Minutes” newsmagazine Sunday night discussing the case.

Gonzalez said the television appearance of the plaintiff and his lawyer tainted the jury, which had been picked Friday, and asked for a new trial. Gonzalez said the segment, which slammed the HMO payment system, contained inflammatory and inaccurate information that would bias the jury.

While Riley agreed that some inaccurate and misleading allegations were made on “60 Minutes,” he said he was convinced that none of the jurors watched the program.

“No one was contaminated by the publicity,” Riley said in ordering the trial to continue.

David Ching is scheduled to take the stand today.