Fighting the System

Plaintiffs’ lawyer Mark Hiepler has made a career out of battling California HMOs, winning several high-profile judgments and earning a reputation for employing new legal weapons in his cases.

The Oxnard attorney gained national attention in 1993 for winning an $89.1-million verdict--later settled for a lesser sum--against Health Net on behalf of his late sister, Nelene Fox, over the HMO’s refusal to pay for a bone marrow transplant to treat her breast cancer.

He also made headlines for his novel claim in a 1995 malpractice case that financial incentives at the heart of many HMO systems influenced two Simi Valley doctors to delay and deny necessary medical tests to cancer patient Joyce Ching, who later died.

Hiepler’s latest attack on HMO practices comes in a lawsuit filed May 27 against an Orange County HMO and a Santa Barbara medical group. He’s alleging that a decision to deny home health-care services to a baby born with severe heart defects was so egregious that it constituted, in legal terms, a crime of torture.

The suit was brought by the boy’s parents, Leonard and Dana Wallock of Santa Barbara, against PacifiCare Health Systems, Monarch Medical Alliance and two of its physician medical directors.

In May 1996, Dana Wallock gave birth to twin boys. Matthew was healthy, but Daniel was born with six congenital heart defects. Shortly after the birth, Dana developed complications from her caesarean delivery and had to undergo surgery that required a nine-week recuperation.

The lawsuit alleges that PacifiCare refused to pay for overnight home nursing care for six months after Daniel’s discharge from the hospital, despite requests from Daniel’s pediatrician for ongoing care.

The Wallocks contend that Daniel’s condition was such that he required around-the-clock hourly feedings and monitoring, which the couple was neither trained nor physically able to do.

“We were terrified and panicking,” Leonard Wallock, an administrator at UC Santa Barbara, recalled in an interview. The emotional trauma was made worse, the Wallocks said, because they were still recovering from the February 1995 death of their 5-month-old daughter, Rachel, from a neurological disorder.

To pay for Daniel’s nursing care, the Wallocks say, they ran up more than $20,000 in credit card and other debt in six months. In January--after the Wallocks lodged a formal complaint with state HMO regulators--PacifiCare agreed to start paying for Daniel’s home health care. The HMO, however, refused to reimburse the Wallocks for their earlier, “unauthorized” medical services.

“It nearly bankrupted us and exhausted us,” says Dana Wallock.

The child’s condition has stabilized, but he still requires daily nursing care and special feedings, which PacifiCare continues to pay for.

A PacifiCare spokeswoman said, “We believe the family did receive the appropriate care from its medical group.” A Monarch executive declined to comment.

Hiepler contends that the HMO’s treatment of the Wallocks constituted “torture” under a 7-year-old California law that added that category as a new type of criminal offense. The law was intended to allow judges to impose life sentences in murder and other cases in which attackers physically torture their victims. Hiepler hopes to apply the criminal statute to his civil case in order to justify a bigger damage award.

“The facts here are that a child was denied the care it needs, that you have a very ill mom who is supposed to be in bed for nine weeks, that the whole family is on the brink of tragedy because you have a baby that requires feeding every hour and may die at any time,” Hiepler charges. “We think that’s torture as opposed to just bad-faith conduct.”

Other legal experts were dubious about Hiepler’s theory.

Stanton J. Price, a Santa Monica health-care lawyer, said he has never heard of any attorney using the torture law in an insurance bad-faith lawsuit.

“I’d say more power to him if he can convince the court, but my guess is he’ll have some trouble,” Price said.

Times staff writer David Olmos can be reached by e-mail at david.olmos@latimes.com or by fax at (213) 237-6879.