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Protecting The Victim: Helping Patients Live Longer


The most powerful weapon in the cancer-fighting arsenal? Hope.

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 treatment.