She spent six of her last years in arbitration with her HMO

By Stephen Martinez, special to CalMatters

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My wife’s suffering is worth nothing. At least that’s what one arbitrator thought.

In 2010, Lindalee noticed a large lump in her left breast. Her HMO denied her an appointment with her longtime OB-GYN and instead sent her to a substandard clinic.

The result is years of pain and suffering, multiple surgeries, and a diminished quality of life.

We wanted to exercise our constitutional right to seek justice in court, but we learned a lot healthcare corporations force patients to give up these rights. “Okay,” we thought, “arbitration should be somewhat like a court of law, fair and efficient.” So we started this process.

It took three years. The arbitrator allowed endless delays, witness tampering and destruction of evidence. Several experts testified that the HMO’s mistakes — multiple misdiagnoses, procedural deviations, denied follow-ups — caused Lindalee’s problems.

Of note, an unsupervised physician’s assistant rejected a lump in the breast of Lindalee, a 55-year-old postmenopausal woman. Despite the high probability that it was cancer, the physician’s assistant prescribed warm compresses and a sports bra and advised Lindalee to avoid chocolate.

Arbitrage was almost as bad as cancer. One grueling testimony brought Lindalee to tears. The HMO attorney then drove her to the arbitration for five hours. The lawyer argued that Lindalee was entirely to blame for the spread of her breast cancer, which struck me as victim blaming.

The verdict was shocking. “The arbitrator finds that (the HMO’s) treatment … was within the standard of care … Plaintiffs should take nothing.”

This happened even though two HMO surgeons, with 60 years of combined experience in breast cancer, testified that the HMO had failed to follow its standard of care.

Certainly our experience with an HMO error, but still a head-scratching arbitration outcome must be an emergency, we thought.

Lindalee had just finished her ordeal with breast cancer when she developed a blockage in her bowel. It was clearly captured on a CT scan. For two years, the HMO failed to act on the recommendations of this report.

After finally receiving a referral to gastroenterology, Lindalee was seen by an unsupervised nurse practitioner who was unable to diagnose the problem. When Lindalee finally got to a gastroenterologist, he told her plainly, “This could kill you.” She underwent emergency surgery.

Faced with another HMO error, we proceeded with arbitration again. We had written off our first attempt as a fluke. But as in the first case, this process also took three years.

This time, the HMO’s attorney secretly obtained 20 years of Lindalee’s psychiatric records for a gastrointestinal case—an extraordinary violation of the Health Privacy Act. He tried to use these personal records, with no medical significance, to torture Lindalee. We later learned that similar invasions of privacy are sometimes used by HMOs as a litigation tactic.

The second arbitration was more of a circus than the first. The arbitrator allowed the HMO witnesses to use unprintable language about my wife. Faced with incredible insults and stacked odds, we gave up.

I later learned that the arbitrator selection system creates a financial incentive for arbitrators to rule in favor of HMOs. If an arbitrator rules against the HMO, its attorneys will likely decline to select that arbitrator in future cases.

This has been documented in numerous government reports. “The fairness of arbitration depends on the neutrality of the arbitrators,” but the incentives for arbitrators “favor the repeat player,” and blue bar panel discovered after a California Supreme Court case in 1997.

What if we had an impartial, neutral third party, such as the California Attorney General, that selects qualified arbitrators in medical error cases? Will this lead to more neutral arbitrators who are not as dependent or motivated by HMO revenue? Will it lead to HMOs being held accountable when bad medical decisions cause patient suffering or even take their life?

I think so.

I was devastated to lose Lindalee to cancer in March 2023. She was my wife and best friend for 42 years. She had spent six of her last years seeking justice, and it had taken its toll. I would give anything to get that time back.

It is my desire to make sure that other families do not face the same injustice after such a devastating and preventable loss. Before Lindalee died, I promised her that I would continue the fight alive.

However, attacking HMO CEOs is not the way to achieve systemic reform. Changing the rigged arbitrage system is.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.