Appeals court allows Arce vs. Kaiser autism class action to proceed

Andrew ArceGreat 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.

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40 comments to Appeals court allows Arce vs. Kaiser autism class action to proceed

  • Anonymous

    This is excellent news! Kaiser and a jury trial? IT IS ABOUT TIME!

    My best to the Arces and any others participating in this class action.

    Congratulations!

    Go get em!

  • Annemarie Stuart

    If at all possible perhaps you could provide a link to articles such as this for Facebook, Twitter, etc. This would allow people to spread the word that you are looking for more patients that were denied coverage.

  • Admin

    Share This link added above. Hover over it for a list of available services, including Facebook & Twitter.

    Edelman PR stopped by this morning, so you can expect to see some astroturfing on social networking sites. Call them out for what they are, and refer people back to this comment.

    From my stats below I can tell that they most likely received the Google Alert about the post, then went looking for more information. You can also see that they downloaded the decision of the appeals court.

    Click for a larger image:

    Edelman PR on the prowl

  • Stephanie

    If this passes it will be a monumental cost which will just be passed on to us. Where in the hell do you think this money will come from? It will no doubt raise my insurance premiums. I cannot afford the $400 a month for my coverage as it is. It is one third of my income. I truly hope this does not pass. If you have kids then stop getting them vaccinated which seems to be the most likeliest cause.

  • Admin

    Stephanie, you’re an idiot. Please stop watching Fox News, which seems to be the “most likeliest cause.”

    If you should ever get cancer, I hope no insurance company will turn down your treatment because its other clients cannot afford the $400 a month for their coverage “as it is.” It isn’t too expensive when it is YOUR life at stake, and you must be feeling really lucky.

    Get it? That’s why we need universal health care.

  • Dr. Bryant

    Stephanie,
    Just a reminder… you ARE a human being, are you not? As a human being, you cannot remain LUCKY forever. Life does not work that way.

    I hope your luck does not run out on you just as many others already has.

  • Stephanie

    I’m called an idiot but we’ll see how you like it when the doctor tells you something is wrong with you but you will have to wait four months for an MRI. Someone asked what if my luck ran out and I got cancer? Then I’d get treatment and wouldn’t have to be put on a waiting list. When we get put on universal health care the quality of care is just going to go down and more than likely the cost will go up. Yes it would go up without it, but that is because our politicians don’t have the guts to fix what is wrong with it and instead they answer to the special interest groups who got them into office. Universal health care means coverage for all. It does not mean quality coverage for all. The only ones who will not suffer under it will be the politicians who will continue to get the best health care around. And they’ll keep getting it even when they retire while we are standing in line for ours!

  • Stephanie

    I don’t know why I even bothered to comment on this silly site. It’s obvious most of these opinions are written by the same person. Pretty lame.

  • Admin

    And selfish too!

    There are people who can’t get an MRI at all RIGHT NOW because they don’t have insurance and can’t get insurance. People WITH insurance are being denied necessary care (innocent children like Andrew Arce among them), and are having their policies rescinded after they get sick. But hey, as long as Lucky Stephanie has hers, screw everybody else. :roll:

    Kindly find another blog to troll. I hear there are entire online communities of mouth-breathers out there, where you should fit right in.

  • Anon

    Stephanie,
    This site is here for a much needed service. I am one of the many Kaiserthrive.org followers so i’d watch yourself on this site. We don’t need more people like you spewing ignorance and hate.

    Kaiserthrive.org’s biggest fan

  • Johann

    The vaccines court, yes there is such an animal, determined that vaccines are not the cause of autism. Further, it does not matter in which side you are on, tax payers like you and me ultimately pay when Kaiser refuses to do so. Further, California laws are clear that autism is a parity diagnosis that should be treated like any other physical illness, if they don’t follow the law, then they cannot do business in CA. Kaiser is not ready to do that. Kaiser make so much money that it could afford to provide treatment for autism to every single individual (child or adult) in the entire state, so I am not feeling one bit sorry for Kaiser and, if they raise your premiums, shame on them. You complain that you cannot afford your premiums, but if you happen to have a family like I do, my premiums are $1200.00 a month. Can I afford that, hell no! However, it does buy piece of mind (I am saying this in a cynical kind of way since it is Kaiser). You are lucky that you don’t have a child with autism, because if you do, you will be singing a different tune. My children are more important to me, than you having to pay an additional $1.00 per month so health plans pay for autism treatments, instead of taxpayer or do without the treatment altogether. BTW $1.00 or less would be the impact on most HMOs insurance premiums.

  • Admin

    How ignorant and spoiled has our society become when many would prefer to go back to living with widespread polio and other preventable and communicable deadly diseases, rather than treat a small child for autism that he was stricken with through no fault of his own? The logical fallacies involved make my head hurt.

  • Barb

    And extremely blind and calloused to other’s pain. The almighty dollar is the driving factor with Kaiser, ALWAYS.

    This is NON-healthcare.

    First do no harm has become, First save a buck;
    The motto of the insurance undustry.

  • johann

    The California Supreme court declined yesterday to block a class action charging Kaiser Foundation Health Plan with violating the Unfair Competition Law by denying speech and behavioral therapies to children with autism spectrum disorders.

    The court denied review of the Jan. 27 ruling of Div. Seven of this district’s Court of Appeal in Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, in which the court held that the complaint raised issues that are properly resolved in a class action, and that Los Angeles Superior Court Judge Emilie Elias erred in dismissing the case on the ground that the court would be required to resolve individual issues with respect to the medical necessity of the therapies.

    The issue, Justice Laurie Zelon explained, was not whether the therapies sought by the plaintiff were medically necessary, but whether the defendant discriminated against autistic children by categorically denying the treatment. Kaiser claims that one of the requested treatments, known as Applied Behavior Analysis, is not covered because it need not be performed by a licensed physician, and that the other requested therapies were non-medical.

    So there, another loss for Kaiser!

  • Olivia

    You all can argue….bottom line there is a small child in need of help that Kaiser is not willing to pay for. Nevertheless, they take our monthly fees faithfully and we can’t question that. I am the same shoes as this family, however Im fairly new at it. My 2 year old was recently diagnosed with at risk autism and Ill tell you what…Kaiser doctors all 5 of them send a seperate referral to the regional center….never have they offered to help us in any way. I know this I have lost 4 months of speech therapy for my baby and that makes me angry! I didnt know and no one told me that I had to do this asap nor did they ever mention that they would not cover it. They have had me oh hold for 4 months…..

  • Admin

    Who “all” is arguing?

  • M

    I am having a problem with Kaiser not wanting to help my son. He hasmany symptoms of Autism from regression of speech to not responding to his name when he used to and many more. I took him to the Kaiser doctor and he told me that my son was not autistic because he plays some form of peek a boo. I have done the M-Chat and other cognitive diagnostic tests and he has failed them(meaning autism). The doctor even asked many questions but refuses to help. He told me that he can’t even say the “A” word. He told me that I should just keep a diary and come back in 3 months. He wont help. He said maybe I am expecting too much from him. If expecting your two year old child to know his name, not say it but respond to it, to even blink when you say it, when he used to but for some reason doesn’t anymore, then yes I am expecting too much. If expecting your 2 year old child to be able to say one word where before he was saying 10, but that stopped at the same time he stopped responding to his name, then I guess I am expecting too much. If expecting your son to look at someone, to play with kids, to even see that they are there, to eat without having to be forced is expecting too much then I guess he’s right, I must be just expecting too much. So I guess if I lower my standards to wanting my son to be like a 6 month old then he will be fine and not have autism. I hate Kaiser and now I can’t even get them to help my child. I even tried to contact some Autism places in my city and have gotten no help. I know early intervention is critical but I don’t know how to help. I ask the professionals and they tell me I must be wrong because they can clap in his face and he will look up. I never said he was deaf and blind so of course he is going to look up when you clap an inch away from his eyes. What else would he do? If anyone knows what I can do or an agency that will respond to at least point me in the right direction please help. PLEASE! I want to hear my child say a word again. I want to see him know his name again. I want to know that he will be ok. I want to see him move forward and not continue to regress developmentally.

  • todd

    I’m very sad, as a long term Happy Kaiser Member and short term Kaiser employee, to hear that any children are not being given necessary treatments.

    One of the biggest things a parent can do is have open and honest dialogs with our pediatricians. Often, we as parents spend a lot of time gathering diagnosis info on the internet and just show up “telling” our docs whats wrong with our kids, instead of letting them do the diagnosis.

    Our KP docs have ZERO financial incentives to deny coverage. I can guarantee that there is ZERO connections between our Care Delivery Units and our Revenue Cycle ( business side ) Units.

    Often we as parents ask doctors for a specific treatment that we feel they “must” have.. instead of letting the doc do their job.

    I know that our docs aren’t perfect, but I have a hard time believing that we’re witholding medically necessary treatment from anyone.

    I know that there are often differences of opinions between doctors and patients, but what a patient wants is often very different from what they need, and I feel this is very common issue with parents who feel their children may be autistic.

    Again.. all my sympathies to the parents out there.. I’m one of you.. but I wanted to offer a contrasting opinion if the administrator will allow it.

    Best regards.

    Todd

  • Admin

    Brave of you to come back, Todd (yes, I remember).

    Thanks for the guarantee about financial incentives, but you’re just wrong about that. Who exactly do you think pays the care side if not the business side?

    I have posted about the hidden incentives elsewhere.

  • Gerardo Garcia.

    Very good, a friend is living a horror story with KP Neurology Dept. Most neurological issues are genetic mutations caused. And KP is the last place that will help, they do not even want to test for them.

  • Gerardo Garcia.

    For the lady with the child that does not speak. Get a second opinion take your child to a good place like UCLA, Kaiser has to pay for a second opinion, if your doctors does not refer you to UCLA file and expedite appeal, if that fail go to the State HMO center. It is your right to get a second opinion and Kaiser has to pay for it.

  • M

    @Gerardo-thank you for that. I didn’t even know I could do that. Well I knew I could try getting a second opinion if I could get someone to see me with me paying cash. Since I put that comment my son has only gotten worse. I called Kaiser to try to get him in to see a developmental pediatrician and they told me they don’t have one, just regular pediatricians. I will check out UCLA. I don’t even mind if I have to pay all the costs with no reimbursement. I just want some help for him.
    @Todd-I am not asking the doctors to diagnose him with autism. I never did ask him to do that. I only know what I see and I see there is something wrong with my son and I also see that I can’t get a doctor to help me help him. I asked him to please just tell me what to do to help him, help me figure out what is wrong with him so I can get him in the right direction. He kept telling me that there is nothing wrong with my child because he plays something close to peekaboo. I don’t know if you know about autism but it is a spectrum disorder and the doctor doesn’t seem to understand that. If you know of a Kaiser pediatrician in Bakersfield, Ca that is willing to listen to my concerns, read my notes/journal, and help my child have some sort of life then please tell me who to go to. I just want some help. How can I go in there and get a doctor to do the diagnosis himself if he cant even utter the word autism? He flat out said he cant say that word. Is that something he is ordered to do or is that just a personal decision he has made. I didn’t go in there telling him this is wrong and that is wrong. I went in and he asked if I had any concerns. He came to the appointment a half hour late, ok no problem we brought toys and breakfast so we waited. He rushed me when I was asking him for tips on how to get my son to eat and how to get him to brush his teeth. He even walked out while I was asking him what kind of stuff was needed for a journal. He walked out telling me that he had other patients to get to. I guess you are right I am asking for a specific treatment for my son, one that he “must” have, and that is that his DEVELOPMENTAL REGRESSION be addressed and not tossed aside before it gets worse. Which it has been getting worse. I read that you too are a parent. So I am asking you if your child was able to speak and reply to his name and do reach normal developmental milestones and then out of nowhere stopped what would you do? Go to a doctor of course. Then what if the doctor told you that there was nothing wrong with your child? Yes you may find it hard to believe that a doctor is withholding necessary medical treatment but it is happening. I have family that works for Kaiser locally and they even see it happening to my son. If you think that he is fine then I guess to you treatment is not being withheld. So do you have any other explanations that will help me help my son? I agree with you on patients wanting what they want and it not always being what they need. I have known of people that go in wanting pills just to take, you know what I mean, and they ALWAYS get them at the Kaiser here in our city. They don’t need them they want them and they get them. I WANT help for my child and guess what I NEED help for my child. My son NEEDS help and I bet if he could talk or communicate with me in some way he would tell me that he also WANTS help. So I guess shame on us for not only needing help but wanting it too.
    M

  • Admin

    Todd probably won’t be back. He just likes to hurl bullsh*t at concerned and grieving parents through the window of his passing car.

    Before you get that 2nd opinion, make sure you get all of the necessary authorization from Kaiser first, and follow all of the required procedures. You don’t want to pay for it out of pocket unless you absolutely have to.

  • @M.. I’m back.. I don’t often have time during the day ( or the inclination at night) to surf random websites, but I wanted to follow this.

    My suggestion is to get a second opinion outside of KP ( asking member services for a copy of your son’s medical records so the outside pediatrician can have all the relevant information )

    At the same time, call member services and let them know the problems you’re experiencing. I’ve had to advocate for care for my wife, and KP isn’t perfect, but we’re sure as heck not witholding care to save money.

    Take the time to email that doc on KP.org and he/she will respond.. they have to. Explain in detail what your issues are and they’re required to respond quickly and with a plan.. not to mention that our docs are very caring people and WANT to help.

    Just remember, everyone who works at KP is a Member as well as an employee, and we all have family members as well. Nobody I know would even consider working for a company that was intentionally doing bad things to our friends, families, and neighbors.

    I just did a search of the directory for a pediatrician in bakersfield but couldn’t find one, as I’m not familiar with all the facility names. Go on to KP.org and do a search for pediatricians in SoCal. I found a developmental pediatrician in bakersfield in about 1 minute. His contact info is listed and you can setup an appointment online.

    I really wish you the best. I know if it were my child, I would be distraught as well, and I keep coming back to this site because it bothers me that the company that has taken such good care of my family has let down others.

    my warmest and sincerest regards,

    todd

  • Lehna's Mom

    Todd,
    Really surprised to hear that Kaiser employees would never work at a company that intentionally would hurt people. Look up Andrew Brewer. He was implementing Kaisers electronic medical records as a FULL-TIME SALARIED KAISER EMPLOYEE, we were denied care, therefore our beautiful baby LEHNA JORDANN BREWER, Andrew’s baby girl, died.

    He was a Kaiser employee and kaiser killed his baby girl. She was my girl too.

    Some care we got there. This is how Kaiser treats it’s own! Surely something to be proud of Todd!

  • Lehna's Mom

    Just a reminder Todd… this is another thing kaiser is guilty of:

    http://www.usatoday.com/news/health/2008-04-29-medical-records_N.htm

  • Lehna's Mom

    Todd,
    And how about those phony arbitration judges.

    This was our “judge” in our case against kaiser:

    http://www.iswface.org/images/Judge-arrest-prostitute.jpg

  • Lehna's Mom

    Todd,
    Here is another one for you to read:

    http://stories.barackobama.com/healthcare/stories/193082/share

    Should keep you busy for awhile while you are providing excellent care at Kaiser.

  • Admin

    Kaiser harms its employees all the time, and the reason I know this is because I frequently receive their horror stories. They don’t usually remain employees after that, so only the happy ones continue to work there. Duh.

    It’s a lot easier to convince yourself that everyone else is lying, than it is to accept that you might be contributing to the harm that is being done, or that the worst could happen to you, too. It’s called denial, but the funny thing about the truth is that it isn’t belief dependent.

  • I was just looking at our CEO’s weekly email to all employees and I thought of your website.

    I realize that you are all here because you’ve had bad experiences with Kaiser and as a parent, I truly sympathize. If my daughter’s brain surgeries wouldn’t have had a positive outcome, I’m sure I would want to blame someone as well.

    The one thing I will say is that there isn’t a healthcare provider out there with a perfect record, and I’d put our record of positive outcomes out there against any group.

    I did a google search for “lawsuits against kaiser permanente” which returned 47,500 hits, with most of the first page being malpractice lawyers and your site.

    I then clicked on the google recommended search “KP horror stories” ( kaiser perm abbreviated by me ) and received 17,500 hits.

    I then did a search “positive stories about KP” and it returned about 166,000 hits. I also clicked on the google created search “KP good insurance” and received about 1.6 Million hits.

    While I know many of you have not had positive outcomes, we have over 8 million members who have excellent outcomes every day, and that’s an average that we all work hard to improve every day.

    I’m sure Andrew Brewer wasn’t creating an EMR that was designed to deny healthcare or access to medical records.

    I’m truly sorry for your loss.. I would be devastated as well.

    I wish all of you the best in your lives, whichever direction they take. I probably won’t come back here very often, as my wife who is a social worker, said that these types of sites aren’t really for open two way dialog, but more for commisserating and grieving together.

    My heart goes out to everyone who has lost someone, but I’m going to continue believing in the best health care I and my family have ever recieved, and stay watchful every time we have medical contact with our providers.

  • Admin

    You’re still missing the point, Todd, and it’s very telling that you continue to dismiss the negative experiences of others as somehow illegitimate because they don’t coincide with your own. We never deny that there are happy KP members. No one thinks doctors should be perfect either, but it’s the absolutely horrendous way your organization treats its victims after the fact that is the crime we work to expose. You’re never going to believe it because it hasn’t happened to you, but KP has never handled a patient grievance in good faith, and I do mean NEVER. Maybe you forgot about the DMHC investigation that determined exactly that, and resulted in multiple multi-million dollar fines, or maybe you just don’t care what the truth is.

    While you’re googling things, why don’t you see if you can find evidence of the time KP’s PR people used a bot to post our link to the comments of thousands of Movable Type blogs in an attempt to get the site banned from Google. They care so much about doing the right thing that they would rather pull dirty tricks to make it difficult for people to find the site, than make the slightest effort to correct the problems being reported.

    The organization you work for lacks integrity, and that’s the bottom line. You? I think you’re just willfully blind.

  • Go Away Todd

    Well isn’t that precious? Todd the Kaiser employee thinks he can psychoanalyze people and stories that he knows nothing about, because his wife is a social worker.

    Me thinks the twit doth protest too much.

  • Admin

    Todd’s handlers will shut him down as soon as they figure out he is posting from a KP IP address.

  • Gerardo Garcia.

    Well Todd no matter what you say Kaiser honors the HMO concept of Horror Medical Organization. We don’t need to read Stephen King, Kaiser Members live the nightmare ask anyone with a serious condition. I only wish you Todd that one day your find yourself in our situation but not on a relative on your self, and at age 30-60 you get some serious kind of Epilepsy, Ataxia, or Huntington’s, anyone of those (there are like 40 or 50) strange diseases, and get treated by Kaiser.

  • Gerardo Garcia.

    And Todd another thing HMOs are above the law. It’s easier to impeach Obama than suing and HMO, they have total protection. But public opinion about Kaiser is poor even when they constantly are advertising on radio and tv. And it is sad that having Kaiser people like my friend has to go to UCLA and pay for treatment to get a good medical care. But the solution is at the end of year cancel Kaiser and get a real medical insurance, may be more expensive but it is worth it.

  • Admin

    Todd Merkel (162.119.68.25) is apparently obsessed with Kaiser victims, especially grieving parents. He originally tried to post here over a year ago, but I didn’t allow those comments at the time because he scolded parents who have lost their children at the hands of Kaiser, for not getting over it and moving on. His reasoning was because his daughter had problems that KP fixed and she lived. I have my daughter, so screw you and get over it!

    He was more respectful in his more recent comments, which is why I let them go through, but he just couldn’t resist getting his digs in with thinly veiled insults, such as:

    …my wife who is a social worker, said that these types of sites aren’t really for open two way dialog…

    Get it? You’re all mentally ill and incapable of reasonable discussion! Just the kind of insensitive jackass KP is famous for, and that any self-respecting masochist would want involved in his or her health care.

    Here’s his blog, his Facebook, and his Twitter. He even looks like a jerk.

    I have a great idea. Let’s all go pay Todd a little visit to engage in some two way dialog on his turf. Or drop him a line here, here, or here.

  • Kaiser killed my Child

    Thank You Admin. This will give me something to do in my spare time since I don’t have my child to raise, thanks to KP.

  • Katie

    I’ve had nothing but problems with Kaiser. I have a chronic illness that keeps flaring up with many different symptoms. At first my nurse practioner would say “you probably have a cold or the flu” and to come back in a couple of months if not better. I’d go back and she’d say the same thing. I kept going back with no results. After three years of this, I finally insisted she refer me to a doctor. He thinks he knows what I have, even though it’s not showing up on the labs (therefore, my short term disability claim was denied and I lost my job). I asked for a 2nd opinion and was sent to the exact same Kaiser doctor. I was told that he was the only Rheumatologist they had. All they do is make me pay co-pays and never get to the bottom of this. By the time I get an appointment the worse of the flare up is over so they never see how bad it gets. They ignore most of my symptoms and don’t even write them in the charts. When I had the parotid gland swell up I was sent to the Rheumatologist who sent me to an ENT who sent me back to the Rhematologist. Neither knew what to do. I could go on and on. My point is that they suck and don’t care. They make a guess about what’s wrong and move on to the next patient, case closed.

  • Alana

    Hospitals are notorious for abusing and neglecting autistic patients. Go to you tube and type in “Autistic Adult in Crisis Goes Unnoticed” and “How to Better Treat Autistic Patients”. It’s simply outrageous and horrifying to see such disregard for their safety and care. Just disgusting. Lawsuits should focus on all hospitals being able to provide medical staff that can handle autistic patients and establish contracts with local nursing agencies who can send in special nurses (who work with autistic patients ) for patients with unique needs.

  • Alana

    It is also FAIR to state that Kaiser employs a great deal of very caring and concerned doctors and nurses who WANT to help autistic patients, but are thwarted by cost containtment issues.

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