Child Injured for Life After Botched Birth at HMO, Private Arbitration Allows HMO to Continue Unsafe Ways

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® Patient’s Medical History: Kevin McCaffrey’s son, Colin, is crippled with Erb’s Palsy because no doctor was present during his wife’s high-risk delivery at their HMO. The McCaffreys were forced to settle their subsequent suit in a private, binding arbitration with the HMO, allowing the HMO to avoid the scrutiny of a public court case.

LOS ANGELES, CA- "My lawyer informed me that suits against my HMO are decided through arbitration. I asked what this meant and he told me that there would be no jury involved. An arbitrator would decide the case.

Furthermore, he informed me that there were set limits determining the size of the award in these type of injury suits. They were typically a lot less than those awarded by a jury in other states, but in California this was the law.

When I asked about factoring in lost wages for Colin, or emotional stress caused to the parents, he said it was too difficult to prove. Lost wages are difficult to prove unless someone is actually working. I thought this unfair. It seemed as if they were penalizing Colin because he was a baby and because he happened to be born in California.

My lawyer also told me the whole arbitration process was kind of rigged in the HMO’s favor. The arbitrators were typically retired judges seeking means to supplement their income, and many relied on my HMO for a steady stream of cases. Given this fact, it made it difficult for an arbitrator not to favor the HMO, since the HMO would cut them off if there were too many adverse decisions.

Ultimately, since there was not much choice in the matter, we settled. Although the settlement was better than nothing, I still don’t think it’s enough.

Worst of all, I am troubled by the fact that after our arbitration the HMO still did not provide the option to have a doctor present when delivering babies. This seems absolutely ludicrous to me.

Six months after Colin’s birth, the HMO asked me to attend a clinic with Colin. The HMO wanted to evaluate Colin to see if some new procedure might be applicable to him. As I waited in the waiting room at the hospital, I began to well up. For when I looked about the room, I saw over 50 babies, all under the age of two, clinging to their parents. None of them were smiling. They all had Erb’s palsy. One little girl, around the age of 1, had such a sad look to her. Her arms, both of them, just dangled lifelessly by her side.

I got up, picked up Colin, hugged him tight and walked out."

— Colin’s story is reported by his father, Kevin McCaffrey.

FTCR will continue to fax daily a story of HMO Arbitration Abuse to educate the public on the need for reform. AB 1751 (Kuehl) makes HMO binding arbitration voluntary rather than mandatory.

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