HMOS: Lawsuit Tries Novel Tactic
Today's Los Angeles Times takes a look at an "imaginative" HMO lawsuit that is attempting to skirt federal ERISA protections granted to HMOs against patient malpractice suits. The case involves an Orange County infant who was born prematurely. The girl has "retinopathy of prematurity, an eye disease that can be a byproduct of the treatment premature babies receive." The condition, also known as ROP, can cause blindness, but it can be successfully treated if it is detected early enough. The lawsuit in the case, which is being "brought by attorney Mark Hiepler ... alleges that professional negligence prevented [the infant] from obtaining such timely treatment." The suit details a series of alleged delays by the infant's doctor, hospital and Cigna HealthCare Inc. By the time the baby was treated on an emergency basis it was "too late to prevent blindness." She is now totally blind. The girl's father commented, "Altogether, we had eight weeks of delays, and during most of this time, we weren't even told time was important."
The Times reports that "probably the most important thing about this lawsuit is the theory attorney Hiepler, who has won several major lawsuits against HMOs, is trying to pursue against Cigna to get around the ban on lawsuits under the federal ERISA statute." Hiepler "hopes to show that Cigna was negligent in approving as part of its network doctors like" the infant's, "and was responsible for payment arrangements rewarding doctors for not rendering treatment." The Times notes that "[i]f Hiepler's arguments prevail, the ERISA exemption may be largely swept aside." For its part, Cigna contends that the parents of the child missed a key appointment "that could have interrupted the spiral toward" the girl's blindness. The parents of the child contend the appointment was never approved. Cigna also argued that its selection process for doctors is adequate (Reich, 6/4).