Verdict for Doctor in HMO Case Hits Nerve
It has been trumpeted as a “shot across the bow of the ship called managed care,” a “crack in the [insurance industry’s] Wall of Jericho” and the consuming public’s “line in the sand.”
A San Diego County Superior Court jury’s $1.75-million award to a doctor who claims that he was fired for spending too much time and money on patients is resonating far beyond the confines of the Southern California courtroom.
In this region and across the country, many doctors, lawyers and health industry experts following the case see it as a clear signal of public dismay with the tug of war between profit-seeking and patient care. Others warn against over-interpreting the results or unfairly maligning the managed care industry.
The case of Thomas W. Self, a pediatric digestive disease specialist for 28 years, has certainly struck some nerves. Self contended in his 1995 lawsuit that he was fired by his medical group for advocating the best possible care for his young patients. It was one of the first cases to invoke a 1992 California law protecting physicians from such retaliation.
Last week, a jury not only agreed but ruled that the medical group had defamed Self and acted maliciously. The same jury will decide in coming weeks whether the medical group’s actions merit additional, punitive damages.
The case doesn’t set a legal precedent; it has no legal significance outside California. It doesn’t even directly target a managed care provider--the defendant is the physicians group that contracts with such providers.
Yet the verdict carries a warning that even some managed care advocates consider worth heeding: Do not put monetary concerns above the doctor-patient relationship.
“I think one must look at this decision as a very important indicator of the perceptions of the American public regarding disposition of health care,” said Miles Zaremski, a Chicago attorney and author who has represented health care entities, including managed care organizations, hospitals and physician groups.
“It indicates that the factors of business must not predominate over . . . rendering quality health care. . . . [People] want their care. They don’t want any forces over their caregiver that will compromise that in any way.”
Self, a 58-year-old specialist trained at Yale and UCLA, said his firing came a dozen years into his tenure, after two meetings in 1995 with top officials at his medical group in which he was chastised for ordering too many tests and spending too much time with his patients.
“It was definitely my clear understanding that I was in the way of the game they wanted to play with managed care,” Self said. “I would not compromise the care I delivered. I wouldn’t compromise on ordering appropriate tests for my patients. I believe this was an effort to rid themselves of an obstacle on that path” to maximizing profits.
“I had a primary goal of giving the best quality care I could,” Self said, and “worrying less about the money.”
Pending Legislation
According to Zaremski and others, Self’s case is the latest salvo in a battle to set limits on insurers so that they do not improperly invade the physician-patient relationship. Bills are pending in Congress and in various state legislatures aimed at holding HMOs accountable for inappropriate meddling in medicine.
California legislators have introduced four bills seeking to expand the liability of insurers for poor patient outcomes resulting from the denial of care.
Many of the bills are being vigorously opposed by industry representatives and some employers, who complain of anti-HMO “hysteria” and insist that managed care has kept insurance affordable.
The idea behind managed care is to control costs by paying providers fixed rates per patient rather than paying a fee for each service. That way, proponents say, the financial incentive is to keep patients healthy. Critics say the incentive is to minimize treatment.
Lawyers for Self’s former employer, the Children’s Associated Medical Group, contended during the trial that the case had nothing to do with managed care, that Self was terminated after a contractual dispute over his role in the organization. The attorneys and the medical group declined to comment on the verdict until after jury deliberations are complete.
In court papers, Self’s attorneys said the medical group, after firing Self, lied to inquiring parents, implying that he had abandoned his patients. Employees also refused to pass along the telephone number and address of his new office, which was across the street, the court papers allege.
The parents were “very upset,” Self said, because many of their children had chronic illnesses such as liver disease, inflammatory bowel disease and colitis. “I was not allowed access to my patient lists. . . . I couldn’t contact my patients to say, ‘Look, I’m here! I’m only 300 yards across the street!’ ”
Self’s attorneys also argued in court briefs that Self was replaced by another physician who later accidentally perforated the bowels of three children, one of whom died. Self, the papers contend, has never made that kind of mistake.
Self’s case was watched carefully by consumer and physician groups. But when last week’s verdict arrived, even Self’s attorney, Sherry Bahrambeygui, said she was surprised at the volume of telephone calls from doctors, lawyers and some major media outlets across the country.
One reason for the interest, she believes, is that Self is among the first doctors to successfully invoke a law designed to keep physicians from being punished for patient advocacy. Such anti-retaliation laws are in place in about two dozen states, but are relatively new and untested.
Others agreed. “No jury has until [now] weighed in for a doctor who claimed he was blackballed for doing the best things for his patients,” said Jamie Court, executive director of Consumers for Quality Care, a Santa Monica-based group.
“That is a loud message for HMOs and for-profit medical corporations that they better keep their hands off [the doctor-patient relationship] or they’ll pay when they come before an American jury.”
Court said the laws represent important “new avenues” forcing insurers to be accountable when patients are harmed. More traditional avenues are often closed off to patients, he said. For example, large employers’ “self-insured” health plans are largely exempt from state-court damages under federal law--a situation that several federal bills aim to change. Also, many patients are required to seek redress in binding arbitration proceedings rather than the courts, which means that their cases are not heard by juries.
“We want to open up every avenue for consumers to be able to have recourse if they are harmed by denial-of-care decisions,” said the California Assembly’s Health Committee Chairman Martin Gallegos (D-Baldwin Park), who has three bills pending intended to protect the rights of patients and doctors under managed care.
Existing Protections
Meanwhile, Gallegos said, the Self verdict sends the signal that existing protections will be enforced.
Members of the managed care industry said they didn’t know enough about the Self case to comment, but cautioned against overreaction to perceived flaws in the system.
“Everybody knows that the climate of public opinion regarding managed care is very negative,” said Maureen O’Haren, an executive vice president with the managed care trade group, the California Assn. of Health Plans.
“Unfortunately, that has been sort of a result of a couple of stories being repeated over and over. There’s a lot of exaggeration about the facts. At the same time, we’re seeing survey after survey, that far and away [people] are satisfied with their health plans. Usually they are more satisfied with HMOs.
Several doctors and attorneys said the issue is not--and should not be--the continued existence of managed care. To their minds, managed care is a given, and cost effectiveness is a valid concern in medicine. The issue is balancing concerns about cost and quality.
“We need to begin to talk to patients about costs,” said Dr. Linda Daniels, chairwoman of the San Diego Medical Society’s bioethics committee. “Patients have been protected from that. . . . We no longer can have every type of test or procedure that patients wish they could have.”
But health plans should not go overboard in their quest for efficiency, said Daniels, a proponent of nonprofit managed care.
“Where health plans are saying you [the doctor] must see six to eight patients an hour, they are setting up a situation where you just can’t practice good medicine. Good medicine requires communication, as well as merely doing an exam or checking a blood pressure. . . . In [just a few] minutes, how in the world are you going to get to know that patient?”
