Great news! The California Court of Appeals has reversed a prior ruling (pdf) by the Superior Court of Los Angeles County, and has sustained Andrew Arce’s right to a class action lawsuit against Kaiser Permanente. The case is scheduled for a jury trial on March 22, 2010 absent any delays.

Yes, you read that right: a JURY TRIAL, thanks to a prior ruling (pdf) by the lower court denying Kaiser’s Motion to Compel Arbitration.

This decision of the Court of Appeals is precedent setting and has been certified for publication. It is a big win against Kaiser. Although we are not yet sure of the impact this case will have on the future rights of other Kaiser victims to have their day in court, it sure can’t hurt!

The Arces’ attorney, Scott Glovsky, is looking for more parents with letters from Kaiser denying treatment for their children’s autism. The more denial letters Mr. Glovsky can collect to present in court, the more likely he will be to prove that Kaiser is refusing to provide necessary services to an entire class of individuals with autism.

The letters can be scanned and emailed, faxed, or mailed the old fashioned way to:

Law Offices of Scott C. Glovsky
225 S. Lake Avenue, Suite 1000
Pasadena, CA 91101
Phone: (626) 243-5598
Fax: (866) 243-2243
Email: sglovsky@scottglovskylaw.com

For background on the case, see our prior posts on the matter.

A complete list of documents related to the Arce v. Kaiser autism class action lawsuit can be found here.

Courtesy of Vickie Travis of the Kaiser Papers:

Valencia Assistant Principal Timothy Howard and his wife Mary Howard were awarded $5 million in a binding arbitration against Kaiser Healthcare. A panel of three arbitrators found that Kaiser physicians were negligent for failing to timely work up Mr. Howard’s transient ischemic attacks (TIA) of the retina which resulted in a devastating stroke and complications that included bilateral amputations of the patient’s legs. “This is a flaw in the Kaiser system that I’ve seen over and over again. Being in a hurry; not listening to the patient; not ordering tests,” said the Howards’ San Diego attorney, Robert Vaage, who has never lost an arbitration against Kaiser. “How does Kaiser expect you to ‘thrive’ if its doctors won’t follow common sense medicine?”

In October of 2007, Mr. Howard was a healthy 46-year-old, working at a middle school in Valencia. He was married and had two twin daughters. He began having symptoms of intermittent “gray-out” or blindness in his right eye. He saw his Kaiser primary care doctor, who referred him to an ophthalmologist, who found no structural abnormalities of the eye. Mr. Howard continued to have vision symptoms, with new complaints of headaches, neck pain, and tingling in his left pinky. At the insistence of his wife, Mr. Howard was seen by Kaiser Neurologist Marika Issakhanian, M.D. It was alleged that Dr. Issakhanian was in a hurry and not interested in hearing the concerns of Mr. Howard and his wife. She diagnosed Mr. Howard with an ocular migraine headache, completely ignoring the signs and symptoms of TIA of the retina. To placate the Howards, she ordered an MRI and MRA (magnetic resonance angiography) of the head and neck, but not until December.

On Thanksgiving evening, Mr. Howard experienced complete vision loss in his right eye. He went to Kaiser Woodland Hills Urgent Care. The doctor there told him he was experiencing an ocular migraine, but agreed to run a CT scan in order to placate Mrs. Howard, who was insisting something was wrong. While waiting for the scan results, Mr. Howard suffered a devastating stroke. Kaiser emergency room doctors diagnosed a carotid dissection as causing the stroke.

Mr. Howard has not been able to return to work since the stroke. He has no use of his left arm and has left-sided weakness. He is wheelchair-bound and needs assistance with all aspects of his life. He also has cognitive and mental deficits from his stroke. He requires assistance 24 hours a day, 7 days a week. His future care needs are estimated in the millions of dollars.

TIA of the retina is caused by intermittent disruption of blood flow to the eye, which causes the gray-outs or visual disturbances. In men under the age of 60, the most likely cause is a carotid dissection. It is diagnosed by MRI/MRA of the head and neck. Treatment for a carotid dissection usually involves taking anticoagulation medication to prevent blood clots. The dissection or tear usually repairs itself within 3-6 months, and the patient can return to a normal life. Left undiagnosed and untreated, a carotid dissection can lead to a devastating stroke.

Kaiser’s electronic records also may have played a role in preventing Mr. Howard from obtaining urgent scans. “Once he was diagnosed incorrectly, that diagnosis followed him from doctor to doctor,” explained Vaage. “When he arrived at Urgent Care, the doctor looked at the E-record, saw Dr. Issakhanian’s diagnosis, and accepted the diagnosis without further testing. That’s all fine and good if you’ve got a good diagnosis.”

“I don’t get it,” added Vaage. “What happened to ruling out the worst potential cause first? Dr. Issakhanian testified that she considered TIA of the retina, knew it could lead to a stroke, but did nothing to rule it out at the time. All it took was one set of scans done within 24-48 hours, and Mr. Howard would have been back to work as an assistant principal. Instead, the Howards’ lives are forever changed.”

Because of the Medical Injury Compensation Reform Act (MICRA), the Howards’ general damages (non-economic damages) are capped at $250,000 apiece. “The Howards’ lives have been destroyed,” said Vaage. “Put in the context of healthcare reform, look at the cost to the public: We’ve lost a hard-working member of society; we have to spend millions of dollars to care for Mr. Howard; the state of California is ending up spending hundreds of thousands of dollars in disability payments; and our health insurance premiums keep going up. The real cost of healthcare is the cost related to the care of patients like Mr. Howard, not tort reform. Kaiser completely failed him.”

For further information please contact:
Robert F. Vaage, Esq.
The Law Offices of Robert Vaage
110 West C St., Suite 2105
San Diego, CA 92101
(619) 338-0505
(619) 338-0588 - fax

Thank you to Paul Payne of the The Press Democrat, for his report today on the ratings of seven Sonoma County Hospitals, by the non-profit Niagara Health Quality Coalition. The report cards were based on California Department of Health records for 2007, and covered 36 different procedures and conditions, as well as hospital errors and mortality rates.

A one-star rating indicates worse than average outcomes, two stars for average, and three stars were given for better than average. There was no overall grade.

Kaiser Permanente Santa Rosa was the only hospital in Sonoma County to receive three one-star below average ratings, for acute stroke mortality, birth trauma for infants, and post-operative hip fractures.

Cue KP’s PRBS response:

“To get the full picture of Kaiser Permanente’s superior quality, it’s important to review and balance both inpatient and outpatient ratings, and health plan services,” spokesman Carl Campbell said in a statement.

Right, because as long as they don’t harm every patient every day, then quality is “superior.” Superior to what, we ask? Of the seven hospitals rated, KP Santa Rosa had the highest number of below average ratings. Way to spin it, spokesliars, but somehow we doubt that statement will be a big comfort to pregnant mothers due to give birth at the Santa Rosa facility in the near future.

The complete Niagara Health Quality Coalition report card is available on the myHealthFinder.com website.

We received an interesting comment today, left by a Kaiser Permanente physician on Donna and Jack Berlin’s post about their son Sean’s death at Kaiser Walnut Creek.

We’ve said it before and we’ll say it again: It is not impossible to get good medical care at Kaiser Permanente. What IS impossible is getting them to take responsibility and make restitution when something does go wrong. And THAT in a nutshell is what makes Kaiser Permanente’s health plan and health care provider in one model more harmful than most other insurance companies. Our reply is below.

First, Robert’s comment:

I am a non Kaiser physician from Massachusetts potentially joining this organization, and objectively it seems that these problems are more with the medical system itself, rather than with Kaiser. Kaiser is an easier target because it is so big. If you think the problems mentioned above are scary, you should see what I see as a medical insider. Believe me when I say Kaiser does not hold the corner on the market of negligence. It is universal. Kaiser unlike other private practices does not provide incentives for their physicians to do more procedures. Whether you know it or not, this is a large source of complications and bad outcomes. As a for instance - a cardiologist saw a patient that came in for a slow heart beat. This physician stands to make money when he/she puts in the pacemaker. He/she ignores the fact that this particular patient’s heart rate is slow because of medications she is on. The pacemaker gets put in anyway. This patient then develops an allergic reaction to the tape on the dressing. The pacemaker wound then gets infected, and eventually the pacemaker itself. Within days, the infection is now in the heart forming an abcess. That is where we stand now.

I only point this out to show that there are far reaching problems that extend to all of medical practice. And while there still will always be bad outcomes, because nothing is perfect, I think at least some organizations make an effort to prevent that which is preventable.

Insurance companies do not want Obama’s reforms to go through because they are making tons of money with the current awful broken system. So fear tactics are employed. A website like this contributes to the fear tactics.

I am sorry for your loss, and if this was indeed preventable, we need to change our medical system so that this sort of thing doesn’t happen again.

And here is our reply:

Repost of a comment I wrote for the front page USA Today article about missing medical records in Beth Stover’s case:

Kaiser is different from traditional insurance in that the doctors essentially ARE the health plan (they would tell you differently) due to a deliberately deceptive organizational structure and physician profit-sharing. Most of the denials we hear about are from doctors ignoring patient complaints, or failure to treat or order necessary tests. Because of peer pressure and identical training a patient can seek a 2nd, 3rd or 4th opinion inside Kaiser and always get the same answer.

This creates a barrier between the patient and the health plan (Kaiser is all about barriers), prevents more complaints from making it to official grievance status, and allows Kaiser to claim health care decisions are only made by doctors. It’s not technically a lie, except that they have so thoroughly dumbed down the standard of care, and because they’re all in on it, the end result is the same as an insurance denial.

We’ve heard from lots of people who end up paying out of pocket to see a non-Kaiser doctor, who will order up the tests just like that and diagnose a problem that Kaiser may have missed for literally months or years. They miss it because they automatically treat every symptom as if it comes from the simplest, least expensive cause (chest infection vs. lung cancer for example). You could say the odds are on Kaiser’s side because most medical problems aren’t life threatening, and will clear up on their own without any intervention from a doctor at all. With the mandatory binding arbitration requirement, and Kaiser’s unlimited legal budget, they can easily slap down most cases that do make it to a lawsuit (they control ALL of the evidence and alter it at will), and even with an occasional big loss they will always be way ahead financially over treating the patients fully in the first place.

Robert stated that “Kaiser unlike other private practices does not provide incentives for their physicians to do more procedures.” Well no kidding, I think the taped conversation that John D. Ehrlichman had with Richard Nixon about KP’s business model made that fact crystal clear:

Ehrlichman: “Edgar Kaiser is running his Permanente deal for profit. And the reason that he can … the reason he can do it … I had Edgar Kaiser come in … talk to me about this and I went into it in some depth. All the incentives are toward less medical care, because …”

President Nixon: [Unclear.]

Ehrlichman: “… the less care they give them, the more money they make.”

President Nixon: “Fine.” [Unclear.]

Ehrlichman: [Unclear] “… and the incentives run the right way.”

President Nixon: “Not bad.”

Kaiser would like the public to believe there is no incentive for its physicians to deny medical care. But what Robert failed to mention is that the Permanente Medical Groups, which employ the doctors, are the FOR PROFIT third arm of the Kaiser Permanente triad (the not for profit health plan and hospitals being the other two).

The for profit Permanente Medical Groups receive payment from the health plan, and the percentage of those payments that makes it into the doctors’ pockets just happens to have an inverse relationship to how much care is provided. So no, there’s no memo line on the check that reads “For Medical Care Denied”, but the incentive is implied in the math. So let me repeat: the doctors essentially ARE Kaiser Permanente, and they are FOR PROFIT. See how Robert’s intentions for posting here suddenly seem so much more clear?

So there you have it. Makes you want to run right out and sign up for Kaiser!

This heartbreaking story arrived in our in box a few days ago. There is only one thing we can think of that is more tragic than a mother having to bury her child, and that is having to live with the knowledge that the death occurred unnecessarily at the hands of the doctors entrusted to save him. Justice rarely prevails in these situations, because the system has long been stacked against patients and in favor of corporate abuse of money and power. We ask our readers to keep Sean Berlin in heart and mind as they witness KP CEO George Halvorson making his rounds, touting Kaiser-style health care “reform” for all… because your child could be next.

I’m writing to tell the story of our 32 year old son, Sean Berlin, who expired at Kaiser Permanente, Walnut Creek on 2/22/07 needlessly & wrongfully. Throughout his short stay — first at Kaiser Redwood City for sinus abscess surgery, and then a needless transfer to Walnut Creek on a holiday weekend to save money — Kaiser negligently failed to diagnose, treat, care for and manage him in connection with his medical condition. They also failed to recognize & timely treat him; failed to provide appropriate follow up procedures, medicines, testing, and screening; and he was allowed to deteriorate while unchecked & improperly monitored as his condition rapidly declined, resulting in his untimely death. He died from severe sepsis, which is a hospital acquired condition that can be treated if detected early enough and with the proper treatments. At all times, we feel Kaiser neglected to abide by the laws & rules of the proper standards of patient care.

We spoke with numerous attorneys who felt we had a case but were unwilling to take it because of the MICRA law in California limiting judgments. The three attorneys who did agree to take the case had to drop it for being unable to find a medical expert willing to testify in Kaiser’s rigged arbitration system. The last attorney extorted thousands of dollars from us before he forced us to drop the arbitration for the same reason — no medical expert willing to go through Kaiser’s binding arbitration. By this time the one year limit for filing arbitration had passed. We also filed grievances with JCAHO and the State Medical Board of California, and once again we were passed off and given the run around.

Losing a child is the most difficult thing anyone can ever go through. I hope that when people read this story they can make a judgment on whether this is the way they would like their loved one to be treated. I hope not because everyone deserves to be treated with the highest degree of care available. The Kaiser system is negligent in so many ways & needs to be accountable for its negligence.

Jack & Donna Berlin

Kaiser Permanente is attempting to compel arbitration in the Arce vs. Kaiser autism lawsuit. Why? Because arbitration is a closed proceeding that is rigged in KP’s favor, of course! We don’t know what this would mean for the class action portion of the case, but hopefully someone with a more brilliant legal mind than ours will explain in the comments.

Warning, these are large PDF files:

• Notice of Hearing and Petition to Compel Arbitration of Kaiser Foundation Health Plan, Inc.
• Notice of Demurrer and Demurrer of Kaiser Foundation Health Plan, Inc. to First Amended Complaint’s Inarbitrable Class Claims
• Request for Judicial Notice in Support of Kaiser Foundation Health Plan, Inc’s Demurrer to Non-Arbitrable UCL Injunctive Relief Claims

What we would really like to see is a lawsuit questioning the legality of forced mandatory binding arbitration, and legislation expressly prohibiting corporations from compelling consumers to arbitrate. Why should individuals be bound involuntarily to a legal ‘remedy’ that most corporations wouldn’t agree to themselves?

According to GiveMeBackMyRights.com’s FAQ :

Do companies use binding mandatory arbitration in their own disputes with other companies?

No, most refuse to use binding mandatory arbitration in their own business dealings. As a matter of fact, car dealers were so afraid of mandatory arbitration for their own disagreements that they spent millions lobbying Congressmen and Senators to pass a federal law that prohibits automobile manufacturers from requiring binding mandatory arbitration in disputes related to dealership franchise clauses. The law passed in 2002.

The United States of America: Government of the Corporations, by the Corporations, for the Corporations…

Previously:

California attorney seeking plaintiffs for autism class action

LA Times covers Kaiser’s refusal to pay for autism treatment

In April we posted a request from California attorney Scott Glovsky, who is seeking plaintiffs for a class action lawsuit against Kaiser Permanente for refusing to cover treatments for autism as required by law. The lawsuit — which was filed on behalf of Andrew Arce, a two-year-old child Kaiser has denied treatment — alleges breach of contract, bad faith, and unfair dealing, and is seeking class action status on the third complaint. (Read the recently amended lawsuit here).

In the Sunday, July 6th Los Angeles Times, Lisa Girion tells Andrew’s story:

An explosion in the number of children diagnosed has parents, insurers and state and private institutions battling over coverage. The case of Andrew Arce is a window into the conflict.

By the time Andrew Arce was 15 months old, his parents suspected he was autistic.

He refused to cuddle, flapped his arms and stared into space a lot. On occasion, he picked at his nose until it drew blood and, with it, smeared the walls of the family’s Pasadena town house.

It was nearly a year, Guillermo Arce said, before Kaiser Permanente, the family’s healthcare provider, confirmed their fears. The diagnosis wasn’t much help, though. Kaiser refused to provide most of the treatment that specialists said Andrew needed — until the state ordered it to in April.

Read the full LA Times story.

Always true to form, Kaiser’s PRBS response not only denies all responsibility, but the creeps actually have the nerve to characterize themselves as “leaders” in the field of autism treatment after being found in violation by regulators. This is beyond disgusting, and a completely heartless and unnecessary slap in the face to the families whose children have been victimized.

Just once we would like to see Kaiser decline to add insult to injury by accepting responsibility for wrongdoing and making amends, but of course we won’t be holding our breath.

Previously:

California attorney seeking plaintiffs for autism class action

More:

From the Los Angeles Daily Journal: Families of Autistic Children, Insurers Battle Over Coverage

SAN FRANCISCO, June 5 /PRNewswire/ — Jeffery Sterman, Public Affairs Director and voice of Kaiser Permanente in San Francisco for ten years is claiming AIDS discrimination and breach of contract. A person with AIDS, Sterman is one of those who helped create the hospital’s response to HIV and AIDS.

David J. St. Louis, Sterman’s attorney, filed the action in California Superior Court in San Francisco and Kaiser Foundation Health Plan was served June 3, 2008.

The lawsuit details how Kaiser Foundation Hospital and Health Plan created a culture where employees are physically harmed and patient care compromised. Workloads are increased. Staffs are reduced. Humiliation and pressure became part of the working experience. Staffs experienced burnout from working 60 to 80 hours, often seven days a week, for an organization in constant crisis mode. Sterman’s Kaiser Permanente doctors said the hostile work environment affected his health.

They are charged with violation of Title VII of the United States Code, the California Fair Employment and Housing Act, the Americans with Disabilities Act and Article I, Section 8 of the California Constitution.

Sterman said, “The current toxic corporate culture is the antithesis of the Thrive marketing plan and the quality of patient care being compromised.”

Turnover of executives is staggering. “In nine years, San Francisco had six Senior Vice Presidents/Area Managers and two interim Senior Vice Presidents/Area Managers. Of those, three are still there, three were fired, two “retired”.

Problems with the Renal Transplant Program in San Francisco caused record fines after the California Department of Managed Care noted significant management deficiencies.

Sterman is a pioneer in the fight against AIDS. Diagnosed with AIDS in 1983, he founded Continuum HIV Day Services in 1987. He was responsible for first Congressional Field Hearing on AIDS and minorities. Joined Kaiser Permanente’s HIV Advisory Board in 1992 to bridge the gap between activists and medical center staff.

Unlike colleagues, the Americans with Disabilities Act, provides protection to speak out.

“It is unfortunate that employees are being physically harmed by Kaiser’s toxic work environment. It belittles the promise of Kaiser’s multi million dollar Thrive marketing campaign,” he said.

Our apologies for the dearth of updates lately, but by no means does our temporary silence indicate that the Kaiser Krappola hasn’t continued to hit the fan. There’s too much to post individually, so please enjoy this Kaiser Permanente News Roundup:

• Now that Kaiser has completed the nationwide roll out of the outpatient side of its HealthConnect electronic medical record, studies like this one, that exploit electronic patient health data (without your permission) will become more commonplace.
• Victim of Kaiser’s disgraced kidney transplant program, Bernard Burks, has won the right to have his lawsuit heard by a jury in a court of law, rather than in Kaiser’s rigged closed arbitration system. Besides justice for Mr. Burks, what we’re looking most forward to is the rare opportunity to spotlight Kaiser lawyer dirty tricks, which will be publicly available in the transcripts.
• Kaiserquotes(dot)com continues its paid blog post spam campaign with the intention of gaming the search engines. Google doesn’t care yet, but that will change if everyone with a Webmaster Tools account reports the paid links, which are against Google’s rules.
• According to the Wall Street Journal, KP is one of many medical facilities reusing single-use medical devices against the advice of manufacturers, who claim the instruments “pose a higher risk of failure and harm when recycled.”
• Yet another used and abused member is Sick and Tired of Kaiser Permanente!
• Members are fleeing Kaiser’s HMO for KP’s new high-deductible and coinsurance health plans. CEO George Halvorson — as usual — misses the point.
• The Los Angeles Times reports that Area Kaiser patients [are] less satisfied than many at other hospitals. Funny how that only happens when Kaiser doesn’t control the survey results.
• In Conscientious Health Insurance Company-an Oxymoron, Tam strongly reminds us why we must “QUESTION EVERYTHING FROM YOUR INSURANCE COMPANY. THEY AREN’T IN IT TO TAKE CARE OF YOU, THEY ARE IN IT FOR THE MONEY.”
• Hospital Stays Vary Less in Kaiser Permanente Hospitals than Others in California. Kaiser’s PR department thinks this is a good thing worth bragging about in a press release. We say it’s more evidence of Kaiser’s meat-market brand of one-size-fits-all medicine.
• NBC11 Investigates Mammography Violations, including several at Kaiser Novato and other Bay Area facilities.
• Kaiser’s cover up of the death of Beth Stover’s baby made the front page of the April 29th issue of USA Today. As a result of the article Ms. Stover was asked to give testimony before Congress on May 13th, as a part of Whistleblower’s Week (transcripts to follow in a later post). Thankfully, Kaiser wasn’t aware of the testimony, which prevented them from interfering. The complete story behind Lehna Brewer’s death can be found here.
• Kaiser CEO George Halvorson inserts foot in mouth.
• Kaiser Colorado opposes a bill that would stop insurers from paying doctors to switch drugs.
• Kaiser plants another visionary leader shill on a government health care advisory committee.
• Kaiser’s 1st quarter 2008 net income drops 64%, while membership remains flat.
• A Kaiser pharmacist was sentenced to six months in jail for stealing medications from Kaiser pharmacies in Maryland.
• 6000 Kaiser members have been put in the middle of a billing dispute between Kaiser Permanente and Prime Health Care. It’s almost fun to watch the two criminal organizations battling it out, but not when the only casualties are the innocent patients.
• Kaiser surgeon, Bruce Barker, has been sentenced to six months in prison for perjuring himself in the trial of a young man who was accused of illegally possessing a gun. Note that the word “former” is missing from the line about Barker’s employment at KP, which tells us that a perjury conviction isn’t grounds for dismissal. A later article claims he was only suspended. Scary.
• In If I wasn’t laughing I’d be screaming: Trying to get treated at Kaiser Permanente (Part II), Red Storm brings us up to date on her ongoing struggle to obtain necessary medical care at Kaiser.
• Anyone who still doubts that Kaiser Permanente physicians and the health plan are one and the same — which creates a conflict of interest so big you could drive an ambulance through it — should find those doubts forever put to rest by recent news that Kaiser doctors in Colorado are now making sales calls to potential members on behalf of the health plan.
• The California Department of Managed Health Care has levied a $300,000 fine, and ordered Kaiser to reinstate coverage to over 1,000 members who had their policies illegally rescinded between 2004 and 2006. As usual, Kaiser’s PRBS release attempts to make it all sound voluntary, but Jerry Flanagan of Consumer Watchdog points out that in the end, patients are still screwed.

Now this is funny. It’s rare that we post something that isn’t Kaiser related, but this extremely humorous political ad for Senator Ron Wyden’s Healthy Americans Act is about universal health care, which we strongly support.

While we would prefer a single-payer universal health care plan that cuts insurance company bureaucracy and greed out of the picture completely, we have our doubts that it is politically possible at this point in time. Wyden’s plan for guaranteed portable insurance coverage for all is a good start because it puts the “free” (as in freedom) back in free market. What universal health care opponents have long refused to acknowledge, is that there is no free market in health care when people are tied to jobs they hate just to keep their health coverage; or when they can’t change plans regardless of how poorly they are treated, because their employer only offers Kaiser.

Our sympathies go out to Kaiser employees everywhere, who not only have to work for a huge, uncaring corporate bureaucracy, but have to receive their health care there too.

For more information visit CareYouKeep.com