HMO MALPRACTICE: Appeals Court Allows Patient To Take HMO To Court
In "a ruling that could open the door for new legal assaults on the increasingly common business practice of requiring the private arbitration of consumer disputes," a state appeals court ruled Tuesday that a Long Beach woman can sue her HMO. The Los Angeles Times reports that the 2nd District Court of Appeal in Los Angeles ruled that Keya Johnson "cannot be barred" from taking Cigna Healthcare of California to court based on her claim that it "misrepresented the quality of its medical services." While Cigna and other health insurers impose "arbitration mandates" on customers that require them to have their disputes heard by an arbitration panel rather than a jury, the judge is allowing Johnson's case to go to court because she is charging Cigna of "false and misleading advertising under the California Consumers Legal Remedies Act." The medical malpractice portion of Johnson's claim must still go to arbitration.
The malpractice portions of Johnson's case center on the 1993 the birth of her son, in which she contends the child was partially paralyzed and brain damaged because a Long Beach hospital did not perform a Caesarean section or have a physician in attendance even though Johnson "had the four major hallmarks" of complications. The false advertising charge arises from Johnson's claim that a Cigna representative urged her to enroll in Cigna's Medi-Cal HMO to receive "better care." Christopher Angelo, the attorney for Johnson, said the failure to perform a C-section was linked to Los Angeles County's practice of "limiting the number of the costly medical procedures." He said, "Cigna's marketing did not say there was a no-C-section rule and it didn't say whether or not you are a high-risk pregnancy, you're getting a physician assistant and not a doctor. What they said in their advertising was that you're going to have better doctor care." One "source close to Cigna" said there was "no official policy" of limiting C-sections. The Times reports that "Cigna representatives denied the false-advertising claim."
The Back Door
The Times reports that "[c]onsumer advocates and lawyers said the ruling will probably result in more attempts by plaintiffs' attorneys to bypass arbitration mandates." Cigna, which said it may appeal the case to the California Supreme Court, said that it did not think the ruling would affect rules delegating medical malpractice claims to arbitration (Olmos, 7/2). Consumers for Quality Care, which filed an amicus brief on Johnson's behalf, called the ruling a victory for consumers. "For the first time anywhere in the nation, those who have been harmed by deceptive or fraudulent HMO practices can go to court. This means the court doors will finally be open to injured HMO patients," said Ed Howard, senior counsel for the consumers group (release, 7/1).