The most powerful weapon in the cancer-fighting arsenal?
Countless patients, after learning that they have mesothelioma, are advised
by their local doctor or HMO that the only treatment available is to "tidy
up your affairs and take a long cruise to the South Pacific."
Doctors give this false advice for many reasons. Few practitioners know
anything about this rare form of asbestos cancer; they may see a single
case of mesothelioma their entire career. With the recent advancements
in surgical and non-surgical treatments, this wrongly robs the patient
of treatment options and robs him of hope.
In other instances, especially in the case of HMOs, this false assessment
of treatment options may be part of a cynical ploy to avoid the costs
of the treatment. The mesothelioma patient's illness, caused by asbestos
makers who chose profit over public health, suffers a second time when
corporate health systems choose the bottom line over extending the patient's life.
After twenty years working with asbestos-related illnesses, our law firm
knows that no amount of money will give mesothelioma victims and their
families what they want most: never to have been afflicted in the first
place. Yet we also know that science has made great strides in treating
the disease, and we take pride in helping our clients obtain access to
the best and brightest physicians who have experience in performing the
latest and most innovative treatments. These are the procedures that provide
the most hope for long term survival.
In the case of patients who are members of an HMO, connecting them with
mesothelioma experts outside their plan is only half the battle. The other
half of the battle involves getting the HMO to pay for the services performed
by a "non-plan" doctor at a "non-plan" hospital.
The manner in which HMOs approach requests for "non-plan" services
is shrouded in secrecy. Even within the same HMO, there is often a great
deal of inconsistency in responses to requests for surgical and non-surgical
services provided by non-plan doctors who are experts in treating mesothelioma.
The rationale for approving one patient's request and denying another
patient's request for the same services appears to sometimes come
down to factors such as the patient's age.
Within the last six months, two of our clients who are members of the same
HMO requested essentially the same surgical and post-surgical treatments
to be performed by "non-plan" doctors at "non-plan"
hospitals which both happen to be University of California teaching hospitals.
One patient is a 49 year-old man. The other patient is a 78 year-old woman
who was extremely active and continued to work full time as the president
of a trade association even after her diagnosis. While the HMO approved
the 49 year-old's request for services with little or no resistance,
the same HMO went to great lengths to deny the services for the 78 year-old.
We knew this was unfair, and aggressively disagreed with the HMO's
tacit decision that the older patient had "lived long enough"
and was not entitled to life-extending services available at UCLA. We
represented her at no charge at multiple levels of administrative reviews
of the HMO's decision.
The HMO's Internal Appeal
The first step in the administrative review process involved submitting
an appeal to the HMO's appeals division. Federal regulations require
an HMO to pay for requested "non-plan" services if the services
are "medically necessary" and are "not available"
by an "in-plan" provider.
In this instance, the requested services involved an innovative surgical
procedure know as a
pleurectomy with decortication performed by the doctor who developed the challenging an intricate procedure
for mesothelioma patients,
Dr. Robert Cameron, Chief of Thoracic Surgery at UCLA Medical Center.
Unlike the alternative surgical procedure which involves removal of the
tumor along with the affected lung and diaphragm, leaving the patient
with the use of only one lung, Dr. Cameron's procedure involves meticulous
removal of the tumor while leaving the lung intact. Dr. Cameron has performed
the procedure on hundreds of mesothelioma patients and, combined with
post-surgical courses of radiation and immunotherapy, the survival rates
for his patients are two to three times the traditional survival of 12-18 months.
At the internal appeal level, we submitted a report from Dr. Cameron in
which he described the unique aspects of the pleurectomy with decortication
surgical procedure and the fact that in order to effectively perform the
surgery the surgeon must have the benefit of performing the procedure
at least fifty times. In the report, Dr. Cameron expressed doubt concerning
the HMO doctor's experience treating mesothelioma patients in general,
let alone performing the pleurectomy with decortication surgical procedure,
based upon the HMO's delay in diagnosing the patient's condition
for at least 18 months.
Notwithstanding the compelling evidence, the HMO rejected the internal
appeal. They did not dispute that the procedure was medically necessary.
The HMO, however, determined that the procedure could be performed in-plan,
though it never indicated whether any of its surgeons had performed the
procedure even one time.
The Independent Review
The next step in the appeals process involved presenting the matter to
a so-called "independent agency" which appoints a so-called
"independent" medical reviewer to assess the basis for the HMO's
decision. A subsequent inspection of the reviewer's file reveals the
extent to which the HMO was able to exert influence over the reviewer's decision.
Upon completing her initial review, the medical reviewer tentatively determined
that, if the HMO surgeon assigned to the patient "performs this operation,
then he should be offered the opportunity. If he does not feel qualified,
then Dr. Cameron should be allowed and health plan should pay."
The reviewer then sent a letter to the HMO asking the following questions:
How many radical pleurectomy and decortication procedures has [the plan's
surgeon] performed and how many of these procedures were specifically
for the treatment of malignant pleural mesothelioma?
Is [the plan's surgeon] considered an expert in the treatment of mesothelioma?
In response, the HMO refused to answer either of these questions because
"there are no requirements for health plans to maintain particular
experience and outcome data on every procedure and condition." The
HMO surgeon assigned to the patient had never performed the pleurectomy
with decortication procedure. The HMO's letter refusing to respond
to the reviewer's questions was accompanied by an email from the HMO's
Medical Director stating that the requested services were being denied
because "identical care is available" through the HMO.
Thereafter, and not pursuant to any documented requests from the reviewer,
an email was sent from one of the HMO's doctors but not the HMO surgeon
assigned to the patient. Nowhere in the email did the doctor provide any
explanation of her experience in treating mesothelioma patients. In the
email, the doctor expressed the opinion that "a board certified thoracic
surgeon is capable of performing pleurectomy or extrapleural pneumonectomy
to treat mesothelioma whether he/she practices in an academic or community
setting…pleurectomy or extrapleural pneumonectomy is a procedure
that can be done well by any board certified thoracic surgeon." This
is like saying any certified airplane mechanic can repair an F-11.
Within a few days of receiving this unsolicited email, and despite not
receiving answers to the questions upon which the reviewer initially indicated
that her determination would be based, the reviewer issued a decision
upholding the HMO's refusal to pay for the services. The reviewer's
decision repeated the statements in the doctor's email that "…a
board certified cardiothoracic surgeon who is privileged to perform pleurectomy
with decortication is capable of providing these services. There is no
medical reason that the services must be provided by Dr. Cameron."
The "independent medical review" turned out to be a regurgitation
of the unfounded and conclusory statements contained in the emails sent
by the HMO's doctor and Medical Director.
The Administrative Law Judge Hearing
The next step in the appeals process involved an administrative law judge.
Prior to the hearing, we obtained a copy of the medical reviewer's
file and saw how, through exertion of pressure from the HMO, the reviewer
retreated from her original position.
Before the hearing, we submitted Dr. Robert Cameron's testimony under
oath before a Los Angeles Superior Court in a lawsuit involving another
mesothelioma patient. Dr. Cameron described the unique challenges and
difficulties presented by performing a pleurectomy with decortication
procedure on a mesothelioma patient. The testimony also detailed the vast
amount of experience that Dr. Cameron has amassed in performing the procedure
on mesothelioma patients.
This testimony was designed to show that, much as the medical reviewer
had originally concluded, the background and experience of the HMO physician
who has been designated to perform the procedure is a crucial factor in
the determination of whether the requested services are available through the HMO.
The hearing was conducted via video teleconference. The hearing began with
the judge's ruling that Dr. Cameron's testimony was inadmissible
because it was given in a lawsuit which did not involve the patient who
is the subject of the appeal hearing. The judge indicated that he did
not find Dr. Cameron's testimony to be relevant to his determination.
Less than five minutes into the hearing, the judge made statements to the
effect that, even though we were not able to exercise subpoena power over
the HMO surgeon assigned to the patient and have the doctor appear and
provide testimony, we had not established that the surgeon did
not have experience performing the pleurectomy with decortication on mesothelioma
patients. The judge was uninterested in the facts revealing the HMO's
efforts to prevent information concerning the surgeon's absence of
experience in performing the procedure and treating mesothelioma patients
from becoming part of the record. Then the judge dismissed our position
that since the HMO was it could provide the services, it had a burden
to prove that its surgeon had the experience or expertise to do the job.
More than two months have passed and the judge has still not issued his
decision despite numerous requests from this office to do so.
Thankfully, the patient did not wait for all of the various levels of administrative
appeals to be exhausted before proceeding with the pleurectomy / decortication
procedure with Dr. Robert Cameron. We are pleased to report that the patient
tolerated the procedure extraordinarily well and has even returned to
work following the procedure. She scoffs at the idea that, because she
is now 79 years old, she is less deserving of the additional months or
years of life she hopes to receive from Dr. Cameron's surgery. She
is passionate about doing everything within her power to overcome her
disease and will not give up the fight against those responsible for her
disease and those who would attempt to deny her access to life extending