HMO Allows Young Boy’s Brain Tumor to Grow, Unrepresented Family Will Have to Drop Arbitration

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® Patient’s Medical History: "In May of 1996, our HMO refused an MRI and misdiagnosed our then 6 yr old son, Zakary. Eventually, the HMO agreed to perform a CT scan which an HMO radiologist and HMO pediatrician reported as "clear."

Then in April of 1998, a CT scan performed on Zakary for a concussion due to an unrelated injury revealed a brain tumor which we then learned was clearly evident on the initial CT scan. The HMO somehow had made a mistake.

When we tried to get Zakary’s medical records from the HMO they claimed they had lost his MRI’s and other records. I had to have a sit in at the HMO and talk to radiology employees myself in order to get them.

We were successful in getting the Department of Corporations to intervene on an emergency basis to mandate the HMO refer out Zakary’s care to another facility.

In June of 1998, Zak underwent successful brain surgery with a total resection of a benign meningioma."

VACAVILLE, CA- "We filed for arbitration on May 1, 1999, against the HMO. After our original attorney had to relieve himself from our case, twenty two law firms have reviewed and heralded the strength of our case, but all have turned it down because their time and costs to represent us in arbitration are not worth what they will recover. We now have had to try and represent ourselves. We made an offer to settle for the medical costs alone, but the HMO refused.

We have found that the HMO does not abide by arbitration rules. The HMO attorneys proceeded with discovery prior to naming the party arbitrators. They sent subpoenas to depose our doctors and my husband and I. They are not allowed to do that until an arbitrator is chosen. We sent them a letter stating this, but they only stopped with discovery for a short time and then began again.

Lacking the finances, legal knowledge or emotional stamina to represent ourselves, we will be forced to drop our case against the HMO. Our original attorney told us we would have to pay up to $60,000 to complete the arbitration against the HMO, with legal fees and expert witnesses. He told us we would probably be better off dropping it or we could be bankrupted by it. As of now, our arbitration is ‘dead in the water.’

Even if we have to drop it, we want to use our experience to help this from happening to others.

Our son faces an uncertain future because of his care at the HMO. During the company’s two year delay in diagnosing Zakary, his otherwise benign tumor grew into bone, which greatly increased his chance of having a reoccurence, and a reoccurrence is often malignant.

We decided to switch health plans because of this experience. When my husband went to his employer to do so, no plan would take us because of Zakary’s condition. We had to wait until open enrollment to finally switch out of our HMO.

Now, Zakary is aggressively followed every six months with scans and tests. We are fortunate that he is so well, but the HMO should not be off the hook because he did not die. They should be publicly accountable for their mistakes. We feel victimized by this whole process."

— Zakary’s story is reported by his mother, Belinda Ostertag.

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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