Man’s Leg in Jeopardy After HMO Delays, Loses Remedy in Arbitration

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® Patient’s Medical History: Joseph Martin Jr. fell off a ladder and injured his left knee, tearing the ligaments off the patella. Joseph’s HMO doctor repaired his knee by tying the ligaments in place until healing was completed.

Joseph’s knee had completely healed, or so he thought, until two years later when he noticed some hard particles present under the skin of his left knee.

A few months after detecting the particles, Joseph went to his HMO doctor again and told him about it. The HMO doctor took x-rays and confirmed that there were some mites that could be seen and that he could remove them. Joseph and the HMO doctor established the day the mites would be removed and started preparing for the operation date set for the next month.

After the operation, Joseph got a staph infection in his knee. Joseph and his wife, Denise, called repeatedly to the HMO to get Joseph an appointment. The HMO repeatedly denied Joseph an appointment. When Joseph finally saw an HMO doctor, the staph infection was so serious he would have to spend a month in the hospital away from his family.

Now, Joseph suffers from chronic Osteomyelitis, related to the staph infection. He has been told he will have the condition for the rest of his life and will eventually have to lose his leg above the left knee.

CARSON, CA- "We entered the process of arbitration against our HMO. Initially, we were unaware of the mandatory arbitration clause in our contract.

This arbitration process is very grueling because of the inherent pitfalls designed by the defense attorneys and neutral arbitrators.

The HMO’s lead attorney offered our attorney a $15,000 settlement prior to the beginning of the arbitration hearing. That meant to me an admission of guilt and the award had already been predetermined.

My medical records were the single most important document available for the hearing. But during the arbitration these important documents were missing. How could something so important become unavailable? How could a patient prevail if his health plan misplaces or doesn’t maintain proper medical records? There was a breach of duty by the HMO in my case for not maintaining adequate records.

Also, the HMO’s expert witness testified about a completely different organism being present in my blood. Yet I had been diagnosed with staphylococcus aureus, so his testimony was false. In my opinion the HMO’s expert witness perjured himself under oath. I understand that the arbitration award was made based upon this expert witness’ testimony. Under these conditions, this award should be vacated for perjury.

The arbitrator was not neutral. How could the arbitrator render an unbiased and neutral opinion in my hearing when apparently it involves his schoolmates, associates, and fraternity brothers. This was revealed in their greeting of each other. The arbitrator asked the HMO expert witness about his old drinking buddies, etc. This relationship, to me, is very pertinent information. Why was this information withheld?

We find that this process is lined with incentives for the arbitrators, but is not in the consumer’s best interest at all. If there’s any financial incentive for you, would you award damages if your continued employment depended on your verdict? The arbitrator in our hearing stated that he himself handled over one hundred and fifty arbitrations.

The arbitration hearing was held with all the characteristics of the "Old Southern Kangaroo Court" where the victim pays rather than being paid.

Also, arbitration is supposed to be less costly, but when you hire an expert witness your looking at a figure of $5,000 to $6,000. The injured party is responsible for that. How is this less expensive than court, especially when the deck is already stacked against the injured party.

Lastly, I think that we should have all three of our choices for a remedy against an HMO restored. We should be able to settle out of court, go through arbitration with neutral arbitrators or have a trial by jury. If this is done, I feel we will have our due process of the law restored. We need to restore our civil right to a jury trial."

— Denise and Joseph Martin Jr. report their own story.

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.

Consumer Watchdog
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