Woman Rejects Insufficient Settlement With HMO, Regrets Decision After Unfair Arbitration

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® Patient’s Medical History: Linda Goldstein went into her HMO for a double bunionectomy operation [bunion surgery] on the big and small toes of her right foot. Immediately after the operation, she experienced excruciating pain in her right foot, something she never experienced after a prior bunionectomy operation, performed on her left foot, at a different medical facility.

Even after Linda complained of "crunching and popping" and extreme pain in her right big toe, the HMO podiatrist who performed the operation remained insensitive to her complaints, as well as her pain. Linda was told by the HMO podiatrist to simply "remain patient" until the natural healing process was completed. The HMO podiatrist explained to Linda that the healing process would take approximatley six months.

After a couple of months of "being patient," Linda’s ability to walk normally became hampered by the fact that her right big toe was now "elevated and shortened."

Linda attempted to get an appointment with the HMO podiatrist regarding this condition, but was advised that the HMO doctor was unavailable for another two months. Linda then sought a second opinion from an independent podiatrist, outside of her HMO network. She was advised by the new doctor, in writing, that her now hampered condition was caused by the HMO improperly denying her the necessary and proper post-operative care, including the need for a second post-operative operation, within the first six weeks of the first operation, that could have corrected the problem.

STEVENSON RANCH, CA- Linda timely filed an administrative claim for arbitration, as was required by the HMO contract she was required to sign when she first enrolled with the HMO provider. Prior to the start of the arbitration, Linda’s HMO made an offer to settle the matter, away from the presence of the arbitrator, for $50,000. Unfortunately, that offer, minus the attorney’s fees and costs, would have left Linda with the approximate sum of only $20,000 to $25,000. This amount was significantly less than the amount required to perform the operation, or operations, necessary to correct Linda’s right toe problem, if it could even be corrected at that late of a date. Accordingly, Linda rejected the offer and the Goldsteins began their HMO’s proceedings.

The Goldsteins report that during the arbitration, the HMO’s expert changed his testimony from what he had stated in his deposition and was impeached upon cross-examination.

On the third day of the hearing, near the end of the arbitration, the arbitrator began to fall asleep, indicating that he was too tired to hear closing arguments (Linda and her husband, Benson, believe the arbitrator must have been between 75 and 80 years of age). The arbitrator instead required that the parties submit written closing arguments directly to his office. Upon leaving the hearing room that day, Linda and her husband observed the arbitrator shake hands with the HMO’s lawyer and state, "It was good seeing you again." According to the Goldsteins, this behavior indicated that some sort of previous relationship existed between the arbitrator and the HMO lawyer, and made them very wary of the possibility of a biased decision in favor of the HMO.

Though law states that closing arguments must be limited to a plaintiff’s initial close, a defendant’s singular close and a plaintiff’s rebuttal close, the Goldsteins claim the HMO submitted their own "rebuttal close." Benson Goldstein, a lawyer himself, indicates this constituted improper procedure. Benson also claims this improper procedure was aggravated by the fact that the arbitrator did not discard the HMO’s "rebuttal close," but instead, actually used five specific points from the HMO’s (improper) close, nearly verbatim, in his "award of arbitrator."

As Benson states, "As could be predicted, the arbitrator issued his five page ‘award of arbitrator’ in favor of the HMO." Linda lost the arbitration on all counts.

Subsequent to receiving the decision, Linda discovered, through the arbitration organization the arbitrator is a member of, that the arbitrator knew of the rejected $50,000 offer prior to his decision. The Goldsteins believe that, "the arbitrators in this HMO arbitration system are advised by the HMO’s defense council whenever a settlement is rejected. Then the system becomes just a numbers game; the plaintiff employs the arbitrator only once, but the HMO employs the arbitrator repeatedly, particularly if the arbitrator repeatedly rules in favor of the HMO. In other words, the HMO arbitration system is inherently one-sided against the injured patient."

— Linda’s story is reported by her husband, Benson Goldstein.

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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