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DOCTOR PUTS PATIENTS BEFORE PROFITS

Dec 8, 1998

The Ethnic News Watch

(Speakin' Out News)

Doctor Puts Patients Before Profits

By Mark S. Mandell and Gregory B. Breedlove

Thomas W. Self, M.D., had garnered a spotless record practicing pediatric medicine for 28 years - 12 with the Children's Associated Medical Group in California - when he was called on the carpet in 1995. The Yale-trained, digestive disease specialist was reprimanded by the physician group for spending too much time with his patients.

When Dr. Self stood up for his patients and refused to curtail necessary medical tests and the length of visits, he was fired. The medical group replaced him with a younger, inexperienced doctor who, while generating enormous profits for the medical group, was involved in several medical incidents, including the death of one child.

"I was in the way of the game they wanted to play with managed care," Dr. Self told the Los Angeles Times last April. "I believe this was an effort to rid themselves of an obstacle on the path to maximizing profits."

But Dr. Self didn't just disappear. He wanted to make a point about what doctors are supposed to do and what he personally had taken an oath to do. He filed suit against his former employer and won. His case has been called a "shot across the bow of the ship called managed care.'

This past April, a San Diego jury found that the Children's Associated

Medical Group had wrongly fired Dr. Self in order to increase revenue. The jury also found that the medical group had made untrue and disparaging remarks about Dr. Self in order to discredit him. The medical group quickly settled this case before it entered the final, punitive damages phase of the trial.

This decision was the first jury verdict in favor of a physician under a California law that prohibits retaliation against doctors who advocate appropriate medical care for their patients.

While the case is most significant in California, consumer advocates

believe it will have a broader impact on the ongoing debate over the power of managed care bureaucracies and the prospects for managed care reform in the U.S. Congress.

"This is a loud message for HMO 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," said Jamie Court, executive director of Consumers for Quality Care, a Santa Monica-based group.

Consumer advocates for years have criticized HMOs and other managed care insurer/providers for playing "hide-and-seek" with the law. That's because of an unintended loophole in the federal Employee Retirement Security Act (ERISA) that voids state patient protection laws in 50 states for patients covered by employer-provided health plans - denying the rights and remedies for 120 million working Americans.

What this means is that HMOs can callously delay and deny the treatment

that your doctor deems necessary to your health, and then turn around and claim that, since they just provide insurance, they are shielded from legal liability. All they are responsible for is the cost of the treatment delayed or denied.

In other words, if a loved one dies before the HMO approves needed treatment, the HMO pays nothing and the family has no remedy. Under ERISA, HMOs have no incentive to provide expensive medically appropriate treatment because they are not held responsible for the consequences of their denials. As U.S. Representative Charlie Norwood (R-GA), a dentist who supports managed care reform, told USA Today (June 19, 1998), "The managed care industry is the only industry that has a congressionally mandated shield from liability." Rep. Norwood is sponsoring one of a number of bills that would eliminate the federal law blocking individuals from holding managed care companies accountable when they negligently delay or deny medical care.

Big insurance companies and health maintenance organizations are under increasing scrutiny for their propensity to put profits ahead of the health and safety of consumers. But with doctors and patients calling for HMOs to be held accountable for the decisions they make, change is in the air.

By standing up for his patients, Dr. Thomas Self showed that ethics and values have a singular place in the debate over the future of America's health care. And because of the accountability meted out by a citizen jury, you can be sure that Dr. Self's former employer and other managed care insurer/providers will think twice before telling doctors to spend less time with their patients.

Mark S. Mandell, president of the Association of Trial Lawyers of America, is a partner in the Providence, RI., law firm of Mandell, Schwartz & Boisclair.

Gregory B. Breedlove, president of the Alabama Trial Lawyer Association, is an attorney in the law firm of Cunningham, Bounds, Yance, Crowder & Brown.

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