The Real Medical Malpractice
(This is a long, and personal story. It could easily be dismissed as a whining, sniveling "poor little me" attempt at getting attention. However, if it just one out of 100 of the other people that are also affected by the circumstances cited here, we are talking about almost 150,000 people, and over $150M. It is worth reading about, and taking corrective action!)
Much has been written about incompetent doctors remaining within the system (see Managed Care & Doctors: the broken promise -- http://www.newsday.com/news/doctors/edocs14.htm).
Horror stories abound concerning HMOs wrongfully denying proper care; sometimes resulting in death. (see Family Files Malpractice Lawsuit Against Texas HMO -- http://www.callertimes.com/autoconv/biztex98/biztex12.html)
But I have yet to see anything written about the medical malpractice being foisted upon the approximately 148 million Americans, including approximately 9.6 million Texans, whose medical care is paid for through ERISA-covered plans sponsored by employers that are not HMOs. For an excellent discourse on these plans, and what can go wrong with them (and does), see https://www.angelfire.com/biz/romarkaraoke/Erisa.html. Please follow each of the internal links, as there are many side issues that are not easily explained.
Not every employer-sponsored self-funded/self-insured plan is to be faulted. Some fiduciaries take their charter of "accruing to the benefit of the enrollee" quite seriously. However, in the hands of the uncaring and unscrupulous, with no incentive to treat claims fairly, there is no viable recourse.
On paper, the "rights" afforded under ERISA and the benefit Plan are considerable. You can appeal numerous times, you can receive a "full and final review", you can even have your day in court. That is the form of it.
In actual practice:
In short, should the wronged party have the resources to stay the distance, the "bad guys" will only have to pay for what should have been paid for in the first place.
I will show the ludicrous nature of a denial for a single item from my own experience and coorespondence. The total of this type of denial for my wife and myself, TO A SINGLE DOCTOR, reaches six-figures.
Service: Rocephin - J0696
Initial Denial Reason: Not Medically Necessary - Intramuscular Injections Not Effective For Eradication Of Lyme Disease* The Metromedia Restaurant Group employee benefit Plan defines Medically Necessary as:
"OO. Medically Necessary means a medical procedure or supply that satisfies all of the following:
(1) It must be legal;
(2) It must be ordered by a Physician;
(3) It must be safe and effective in treating the condition for which it is ordered;
(4) It must be part of a course of treatment which is generally accepted by the American medical Community, including all branches of professional societies and governmental agencies;
(5) It must be of the proper quantity, frequency and duration for treatment of the condition for which it is ordered.
(6) It must not be redundant when it is combined with other services and supplies that are used to treat the condition for which it is ordered;
(7) It must not be Experimental/Investigative;
(8) It must not be maintenance therapy or treatment; and
(9) Its purpose must be to restore health and extend life."
If a benefit is denied, the Plan, and ERISA also states that:
"shall provide to every claimant who is denied a claim for benefits written notice setting forth in a manner calculated to be understood by the claimant:
(1) The specific reason or reasons for the denial;
(2) Specific reference to pertinent plan provisions on which the denial is based;
(3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary and;
(4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review."
29 C.F.R. @ 2560.503-1(f).
* Medical literature indicates that it is not possible to deliver an effective treatment dose for eradication of Lyme disease with this antibiotic using the intramuscular route, as 2 mg. (sic) daily intravenously are required to accomplish this. Documentation includes "Lyme Borreliosis and Related Disorders," by Kenneth Liegner, MD and Conn's Current Therapies. 04/30/99
A part of my November 21, 1998 response following this denial:
"However, there is an amplifying footnote on the attached spreadsheet that
is extremely troublesome; it brings the qualifications and ethics of the unnamed reviewing physician consultant
in doubt. The footnote states "Medical literature indicates that it is not possible to deliver an effective
treatment dose for eradication of Lyme disease with this antibiotic using the intramuscular route, as 2 mg. daily
intravenously are required to accomplish this. Documentation includes 'Lyme Borreliosis and Related Disorders,'
by Kenneth Liegner, MD and Conn's Current Therapies."
Surely the nameless physician consultant has heard of Jarisch-Herxheimer
(Herx) reactions. The first IM Rocephin injection (paid for by First Health)
was 2G IM. However, the Herx reaction was so severe, and the pain so excruciating that I couldn't get out of bed,
much less drive to work. Using this "patient tolerance" indicator, it was decided that 1G twice a week
was more tolerable. These are the charges First Health declared "not medically necessary," and did not
pay for. If First Health isn't going to pay for the cheaper IM treatment, it is logical to assume that First Health
is going to find a way to deny the more expensive treatment cited in their footnote. Dr. xx has been cost conscious
throughout, and "enjoys"
enjoyed a PPO status with First Health, at quite substantial discounts.
It is also quite apparent that the nameless physician consultant did not take into account complicating factors
contained in my medical record, and cited as warnings in the literature. The IM route was chosen because IV treatment
could not be undertaken while the patient is on high-dosage Coumadine. The depressed state of the auto immune system
has a high probability of infection at the central line or PICC catheter insertion point. The surgery required
to install a central line catheter has the danger of blood clot resulting in pulmonary embolism, especially in
light of the protein-C clotting disorder.
By the way, in the texts cited by the spreadsheet footnote, there are no specific regimens for treatment -- they
are only guidelines, modified by the treating physician using many factors. Perhaps the 2mg listed in the footnote
is a typo; 2mg is totally inadequate.
We found two articles by Liegner with similar titles:
(1) Lyme Borreliosis and Related Disorders, Internal and Critical Care Medicine. Their are no specific treatment guidelines cited in this article. It is, however, replete with examples of a need to adjust treatment based upon patient response, presenting symptoms, etc. It also states that ..."individuals who have demonstrated relapses following aggressive treatment may require an open-ended antibiotic approach...".
It is quite ludicrous and obviously unethical for a remote physician that has not examined the patient to declare that treatment protocols should override the treating physician. The treating physician is the one that is intimately dealing with patient response, presenting symptoms, etc. Then to cite as a footnote dosage levels that are inadequate, and use "eradicate" in the same sentence as Lyme disease is ludicrous. Lyme cannot be eradicated; it is the presenting symptoms and the current "active infection cycle" that is the focus of the treatment. There is no wonder First Health didn't name their physician consultant. Antibiotics cannot kill the Lyme spirochete when it is in a dormant or encysted state.
(2) Lyme Borreliosis and Related Disorders , presented Sunday, April 26, 1998 at the 11th Scientific Conference on Lyme Disease and other Spirochetal & Tick-Borne Disorders (Dr. Xxxxx was an attendee).
The Disseminated Lyme Disease: Laboratory Diagnosis, Useful laboratory tests, Other useful adjunctive diagnostic studies, Disseminated Lyme Disease: Approach to Treatment , and Role of Empiric Diagnostic and Therapeutic Trial paragraphs show that denial reasons of "duplicate charges" and "not medically necessary" were arbitrarily applied. Specifically noted is the need for submitting specimens to multiple, qualified laboratories, and the need for various serial tests on a two-week or monthly basis while undergoing antibiotic therapy. This is because antibiotic therapy can have adverse effects on the system.
The Conn's Current Therapies section on Lyme Disease, written by Joseph J. Burrascano, Jr. MD is THE BIBLE on Lyme Disease (LD) since at least 1989. Conn's is a standard reference text for treating physicians.
"There is no universally effective antibiotic for treating Lyme Disease. The choice of medication used and the dosage prescribed will vary for different people based on multiple factors."
"Drug levels are done until the most acceptable dose is achieved and then at any time major changes in the treatment regimen occur."
"All patients respond differently and therapy must be individualized. It is not uncommon for a patient who has been ill for many years to require open ended treatment regimens; indeed, some patients will require ongoing maintenance therapy to remain well."
Despite this response, the denial was "upheld." I made my final appeal, so the named fiduciary contracted with an "independent" physician reviewer with "no previous relationship" with Metromedia Restaurant Group. The "full and final" review was conducted, with the same denial reason and the same amplifing footnote (2mg).
The letter giving me the bad news about the "full and final" review stated the the reviewer had "utilized "(I) the 15th edition (1998) of Harrison's Principles of Internal Medicine and (ii) the 1998 Sanford Guide to Antimicrobial Therapy" for reference material."
In a subsequent letter, I pointed out that at the time of this "full and final" review, the 15th edition of Harrison's Principles of Internal Medicine had not yet been published. Additonally, I pointed out the the * amplifying footnote of 2mg still had not been corrected. I futher pointed out the in the Sanford Guide to Antimicrobial Therapy, "… An Editorial Note states …Some of the recommendations in the Sanford Guide suggest use of agents for purposes or dosages other than recommended in product labelling. Such recommendations are based on reports in peer-reviewed publications; they are not based on direct input from any pharmaceutical manufacturer. They are made only with due consideration of the concerns of the Food and Drug Administration for "off-label" uses. We have attempted to identify such as "not FDA-approved" for this indication."
The Sanford Guide also contains many footnotes and abbreviations. The one that really caught my eye is "The recommended dosages and durations is a minimum or average, and should not be construed as absolute."
And finally, I pointed out that in Dr. J.J. Burrascano’s (author of the Lyme disease section in Conn’s Current Therapy) 12th edition on Lyme Disease Treatment (published October 1998):
"Lyme is diagnosed clinically, as no currently available tests, no matter the source or type, are definitive in ruling in or ruling out infection with these pathogens, or whether these infections are responsible for the patient's symptoms. The entire clinical picture must be taken into account, including a search for concurrent conditions and alternate diagnoses, and other reasons for some of the presenting complaints. Often, much of the diagnostic process in late, disseminated Lyme involves ruling out other illnesses and defining the extent of damage that might require separate evaluation and treatment ."
"Regular blood counts and liver panels are recommended during any prolonged course of therapy"
" Since blood levels are extremely variable they should be measured."
"The treating physician may decide on chronic therapy in order to avoid clinical deterioration. Recommend
you confirm blood levels, and study immune competence. This includes T- and B- cell function and counts, Natural
Killer cell functional assays, complement levels, neutrophil function, and vaccine responsiveness."
"Drug levels are measured until the most acceptable dose is found, and then at any time major changes in the
treatment regimen occur. With parenteral therapy, CBC and chem/liver panels are done at least twice each month
during symptom flares, with urinalysis and prothrombin time monitored monthly.""
No matter how I was able to point out that the First Health Medical Director and all the hired independent physicician consultants didn’t know their a-f-a-h-i-t-g, no overruling (which is within the bounds of discretion granted the named fiduciary) was ever made.
I have exhaused all administrative options (the appeals and final rulings cited above). The state has no jurisdiction; they’ve told me so. The US Department of Labor, which has oversight for some ERISA provisions, tells me:
"The Department of Labor does not interpret plan documents or determine whether individuals are entitled to benefits. That is the responsibility of the plan administrator or other appropriate plan official. The Department of Labor receives numerous complaints of disputes between plan participants and employers regarding the interpretation of plan documents and factual information. Generally, we must recommend to plan participants that they seek their own legal counsel. Therefore, if you believe your rights under your plan or ERISA have been violated, and you have exhausted the claim and appeal procedures under the plan, you may want to consult legal counsel for further assistance."
Kind of a Catch-22, ring-around-a-rosy. I’ve exhausted all appeals, all my resources, no attorney will touch the case, The State can’t help. The DOL tells me to go to the person I’m complaining about. Our Senators and Representatives (I’ve written and called) think ERISA is just fine. That leaves public humiliation, and the newspapers don’t want to touch the story either.
So we’ve go Third Party Administrators "just doing what our client tells us to do," the named fiduciary "relying on others" to determine what’s medically necessary, all without examining my deteriorating body.
Meanwhile, my doctor doesn’t get paid, because he’s got other people second guessing his treatment plan.
This isn’t malpractice on somebodies part? How many other Americans are in the same boat? Will some daring publication take on the investigation, do a poll to find out how many wrongful denials are out there?
R. James Martin
501 Sycamore Lane, #327
Euless, Texas 76039
817.540.2272
e-mail – rjamesmartin@yahoo.com
homepage – https://www.angelfire.com/biz/romarkaraoke/james.html
