Wage Fairness to Oregon WorkersNovember 16, 2017
LawPhobia: How Kaiser Doctors’ Fear of Courtrooms Harm Their Patients
In a time when many feel fortunate to have access to any healthcare, substandard health providers often escape the scornful eye they so richly deserve. At the top of this list of medical providers needing sunlight shone onto abhorrent, patient-harming practices is Kaiser Permanente.
Kaiser Permanente has a well-earned reputation for putting profits and efficiencies over patients. President Nixon (an early supporter of the Kaiser model of healthcare) had a top advisor, John Ehrlichman, who famously summarized Kaiser’s philosophy this way: “All the incentives are toward less medical care because the less care, the more money they make.” The frustration many feel towards Kaiser and the HMO-model was well encapsulated by Helen Hunt’s profanity-laden tirade in the film As Good as It Gets. For those interested in Ms. Hunt’s brief, but R-rated speech, you may view it here.
Despite the many complaints one can make against Kaiser and its quality of care, this piece is directed only towards Kaiser’s more recent and confounding practice of refusing to support their patients who find themselves involved in litigation.
When a person is injured at work or because someone behaved irresponsibly, it is common for an insurance company to deny payment or benefits. This can take any number of forms. Here is a common scenario: A delivery driver is hit by a drunk driver at a high rate of speed. The delivery driver goes to the ER complaining of intense low back pain and tingling in his right leg. An MRI shows a herniated disc impinging on a nerve root. Surgery is needed to repair the disc. The drunk driver’s insurance company hires an insurance company doctor to state the driver’s disc herniation pre-existed the crash, and even though the driver had never experienced back pain before, the major cause of the worker’s need for treatment was naturally occurring arthritis in the spine.
When an injured person finds himself in this common scenario, the injured person has only one recourse: he has to have his treating doctor go to bat for him and disagree with the implausible analysis offered up by the insurance company’s hired gun. For many doctors, this is understandably not their favorite part of the job. Most doctors did not go into medicine to become professional witnesses or have their findings questioned. On the other hand, providing expert testimony remains a critical part of any medical provider’s job. The American Medical Association’s Code of Medical Ethics states:
“Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.” (Emphasis added).
Despite the AMA’s insistence that providing medical testimony is “critical” to medical work, some providers, most notably Kaiser Permanente, have taken concerted efforts to avoid providing medical evidence. Over the past 10 years, I have observed Kaiser’s avoidance take the following forms:
Kaiser doctors charge far more than their non-Kaiser peers to speak to an attorney. It is not uncommon for Kaiser doctors to charge in excess of $1,000 per hour to speak with an attorney about one of their patients. These charges are not a factor for insurance companies with deep pockets and a rolodex of their own doctors, but for patients who are injured and not working, these costs can present insurmountable barriers to justice.
Unique among providers, Kaiser instituted a policy that conferences with attorneys be charged in 30-minute increments instead of the customary 15-minute increment. This may seem minor, but an extra 15 minutes can be extra $200 to $300. This is especially unfair to patients who only need 5 to 10 minutes of a doctor’s time.
Even though Kaiser charges excessively for its doctors’ time, I have found Kaiser doctors are often unprepared to discuss their patients. Additionally, they are often unwilling to offer critical information. They instead, resign themselves to answers like, “I just can’t say,” or “That is a tough question. I would defer to whatever [the insurance company doctor] says.” There are some great doctors in the Kaiser system, but they are the exception.
Kaiser’s above practices have led some attorneys to simply refuse to take the cases of people in the Kaiser system. That is a shame. Injured people being treated badly by insurance companies need legal advocates. They also need medical providers who have the expertise and strength of character to offer a real opinion. Without this, injured people have no hope of going up against a giant insurance company and its team of hired doctors.
As tough as Kaiser patients have had it, Kaiser has recently made it even tougher for those involved in litigation. Specifically, Kaiser’s doctors are now telling patients they are flat-out unwilling to testify under any circumstances. Kaiser doctors are telling their patients that if they need a professional opinion, the patient should look to the insurance companies’ doctors. It is hard to know whether these Kaiser doctors lack all concern for their patients’ well-being or if they are astonishingly naïve as to how insurance company doctors behave.
I practice law, in part, because I have strong desire to see every person treated in a just and fair manner. It is maddening to see Kaiser adopt practices that so clearly harm its own patients for reasons I can only speculate (To protect poorly trained doctors? Accommodate doctors with social anxieties?).
There is a very good reason the American Medical Association’s Code of Ethics provides that doctors have an “obligation” to assist in the administration of justice by providing their expert opinions in legal matters. To refuse to provide an expert opinion (or make opinions so expensive they are unattainable) violates the duty these doctors have to their patients. Until Kaiser changes its practice of avoiding the giving of adequate testimony, and thereby harming its patients, I will continue to recommend that every person (who has the option) obtain medical care outside the Kaiser system.