Mother Dies Awaiting Life-Saving Treatment, Daughter’s Remedy Limited By Mandatory Arbitration

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Patient’s Medical History: "In November 1991, my mother’s HMO misdiagnosed and failed to treat blood clots that formed in my mother’s leg after she suffered a minor fracture — ultimately forming into a fatal pulmonary embolism.

An HMO doctor declined to conduct tests recommended by an independent orthopedist, even though my mother exhibited physical signs of blood clots. When this and another HMO doctor finally saw my mother in the emergency room the night she died, after my mother waited 4 1/2 hours, they failed to give her an expensive blood thinner that could have saved her life. My mother was refused admission as well as the life-saving drug she needed. She died waiting for treatment she never received, even though it was available only a few feet from where she died."

LAKE ELSINORE, CA — "I was forced to submit my action to mandatory binding arbitration designed, administered and controlled by the HMO. When I needed the protection of the most basic of constitutional rights, the right to have the circumstances of my mother’s death decided by an impartial jury, I found that this had been stripped from me. What’s more, I didn’t even know when it happened.

Ironically, arbitration is touted by HMOs as a quick and inexpensive alternative to court trials as a way of resolving disputes. However, it could only be an alternative for me if I had another option to choose from. I didn’t.

Mandatory arbitration has been proven to be neither faster nor less expensive than a civil court trial. Our wrongful death case took over 2 1/2 years to get to arbitration instead of the 14 month average for a civil trial in Orange County. The HMO’s attorneys requested, and were granted, delay after delay. These delays were a calculated effort on the HMO’s part to wear us down so emotionally and physically, that we would be willing to accept any offer just to have it over with. The HMO is not interested in the quick settlement of claims. Time is their best friend when dealing with grieving family members or severely injured patients who desperately need the money to try to put their lives together again.

The costs of arbitrating our case were approximately $22,000. Most of that we were forced to spend because the HMO denied their negligence until the day before the arbitration took place. We were forced to spend considerable amounts to prove the negligence we had asked them to admit two years before. We were not able to recover these costs from the HMO in arbitration, as we would have been able to do had we been in court. The HMO’s dishonest tactics cost them nothing, it only cost us.

My mother never knowingly agreed to mandatory binding arbitration. My father, who was the primary insured under his employer’s health benefits package, the only one available to him, didn’t even know about the mandatory arbitration clause until after my mother died. It certainly isn’t a clause they negotiated or bargained for.

We received a unanimous $150,000 judgement against my mother’s HMO. Even so, this was much less than a jury would have awarded and is an insignificant sum to a coporation as wealthy as the HMO. It is certainly not sufficient to deter them from committing the same kind of negligence against someone else.

Arbitration has kept the facts of this case secret and hidden from public scrutiny. Because the HMO had mandated that the proceeding be ‘private’ it is allowed to continue to hide the negligence that killed my mother. We had hoped that our mother’s story would prevent the same thing from happening to anyone else and expected the record of the arbitration to prove the negligent practices that caused her death. We were shocked to learn that we would not be allowed to make any record of the arbitration hearing because the rules set up by the HMO forbid it.

We also learned that the decision of the arbitrators is not appealable to any court in the country. Even if a decision is legally and factually wrong, it cannot be appealed. By forcing consumers to accept mandatory binding arbitration clauses as a condition of receiving critical services, the HMO industry has directly placed itself beyond the reach of the law.

— Barbara Roberts’ story is reported by her daughter, Linda Ross.

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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